(182 N.Y.S.)

that he replied, "No; I have been investigating." That they arranged to meet at the county clerk's the next morning, and at that interview respondent told him to keep quiet; that a clerk across the street in the Hall of Records had his decree under private lock and key as a friend of his, so there would be no newspaper notoriety. That respondent then took him across the street to the Hall of Records building to the bureau of naturalization. That witness became very much excited, and asked by what right respondent took him to that department. Respondent stated that it was a friend of his on a two weeks' vacation, and would witness please wait until his friend returned, so that he could prove that this clerk had kept this paper under cover. That witness told him he would not wait, but to go with him to the seventh floor, where Mr. Halpin was, whom he had called on the day before. That witness said: "Mr. Halpin, this is the man who I spoke to you about yesterday; claimed to be your friend," Mr. Halpin looked at respondent and said he did not know him; had never seen him before to his knowledge. Looked at the paper. Said he did not initial it. Witness asked him how he could answer so quickly, and he said because he did not initial any papers in this department after 1910; this paper being dated 1916. That respondent and witness then went back to the county clerk's office, and that a clerk there got out the papers pertaining to that court, turned to the index file, and showed where his case had been adjourned until October. That respondent and witness then went to Mr. Percy's office, 32 Nassau street, the same day. That he showed this paper, the forged decree, to Mr. Percy, who looked at it and asked respondent what it meant. He did not reply. That respondent and witness quarreled, and witness called him a liar. That they then came down to the sidewalk in front of Mr. Percy's office, whereupon respondent said to witness that he prepared and forged this decree of divorce. That respondent asked witness what he was going to do about it, pleading, on the ground of his wife and children, not to do anything. That he told respondent that he would be back at his office at 2 o'clock to receive the money he had paid him. That after an interview with Mr. Duross, who was respondent's employer, who told respondent to pay back to him the money he had received from him, he did receive the amount, namely, $150, the next day.

Mr. Percy testified that the respondent came to his office with Brodbelt, and introduced Brodbelt to him, and that Brodbelt took a paper, Exhibit 5, out of his pocket, put it down in front of him, and asked what it was. That he looked at it, and turned to respondent, and asked him, "What is this?" and he replied, "I can see what it is," and then respondent and Brodbelt had a very wordy altercation in respect to this paper. Mr. Percy further testified:

"The best of my recollection is that Bunt said in substance that the paper had been prepared because Brodbelt had been continually annoying him by questions in respect as to when this case was to be tried and disposed of, and that he (Mr. Bunt), knowing that the case could not get tried before the summer vacation, had prepared this paper to keep Mr. Brodbelt quiet in the meantime. He had no intention of giving it to Brodbelt, or letting it go out of his possession; but he had thought by this means to keep Mr. Brodbelt quiet."

Mr. Duross testified to the interview in his office, when the respondent paid back the $150 to Mr. Brodbelt.

The respondent himself corroborated the complaining witness' testimony as to the making of an appointment over the telephone to meet him at the naturalization office, the going with him to Mr. Halpin, the interview with him and Mr. Percy, the interview with Mr. Duross, and the paying back of the $150 to him, although contradicting him as to details. The respondent testified:

That he prepared Exhibit 5 in his office and that Brodbelt was present. "He came in to see me; his case was on the calendar; he knew it was on the calendar and published. He came in to see me, and asked me, 'What is next?" and I told him that, in view of the fact that we were in default, Mr. Percy proceeded and took judgment by default. And then he said, 'What happens then?" I stated that after judgment by default he has to order the stenographer's minutes and prepare findings and prepare a judgment; he is allowed about 10 days to do that. He said, 'Supposing, now, they did appear in court, and she does not go any further?' 'Well,' I stated, 'I am attorney of record. I suppose I can prepare a proposed finding and proposed judgment. All you are interested in is the question of alimony. You want a judgment with no alimony?" I said: 'I will prepare a proposed judgment. I have that right as an attorney, and I will take it up with Mr. Percy, and probably he will agree to it, and he will use my proposed judgment.' And he said-well, he didn't think that was a bad idea. I said, 'In case she does not move after the trial to have the stenographer's minutes to prepare the finding and a judgment, why, I would have to get them, in order to put the matter in the form of a finding and judgment'; and he had no objection to that. So then he got curious as to whether it would be in a printed form or in a typewritten form, and I said, 'Well, most of these cases are by printed form, where it is by default; but your case is a little different; yours is not a default of the defendant in printed form furnished by the clerk; this will be a judgment on a counterclaim by a defendant, and it will have to be different, with a lot of different recitals;' and I said, 'That is the thing that you will have to get. right, and in this case it will have to be typewritten by one of the attorneys.' I said, 'Mr. Percy is a very decent fellow; I can talk to him; I can prepare one and take it over to him.' So I started in a draft of the form of judgment, and I went to my files and got out a judgment I had in the Paulus case. where the man prevailed, and then I went into Mr. Duross' file to get a form of judgment when a woman prevailed in the action, so I would get the proper recitals and the proper form of recitals and the proper form of judgment. And I took these different forms of judgments of Mr. Duross' client and my own, and I drafted a proposed judgment as near as I could to what would transpire by Mr. Percy and his witnesses, etc., on a default; and then it was my idea to take it over to Mr. Percy and see if we could not agree on the proposed form. Now, Justice Page, I believe was sitting in Part 3, and Justice Erlanger in Part 4, and on these matrimonial cases they were sending in considerable to Judge Erlanger, and I said, 'Your case will probably go in there, because he is handling these matters'; the other part was handling equity cases, and was filled up; calendar part, and I believe the other parts, were filled up, so Judge Erlanger was taking the cases; and I said, 'He will probably be your judge; but it doesn't make any difference what we put in this form; Mr. Percy will change it in the form to conform to the necessary recitals; but we are particularly interested in the recital leaving out alimony.. That is all we are interested in.'"

As matter of fact no default had then occurred, the case was not on the day calendar, Justice Page was not sitting in Part 3, nor was Justice Erlanger sitting in Part 4. The evidence proceeds:

(182 N.Y.S.)

"Q. Mr. Bunt, did Mr. Brodbelt ask you to prepare a decree of divorce? A. Well, not in so many words. He asked me what it was like, and what the recitals would be, etc., and wanted to see some others I had there, and instead of showing him them I said, 'Well, I am attorney in this case; I suppose I can prepare a proposed decree and take it over to Mr. Percy and get his approval on it;' and without any hesitancy I sat down to the typewriting machine and started off a proposed decree as a sample to show him, and also so as to have the necessary recitals, to make sure that the question of alimony was omitted, and something that would meet with the approval of Mr. Percy as to form. Q. Did you then prepare Petitioner's Exhibit 5? A. That was then prepared. He sat there while I ran it off on the machine. Q. Did Mr. Brodbelt say what he wanted with this paper? A: Not at that time. The way the question came up of what he wanted it for, one of the papers I had in the Paulus case was certified, and I spoke about it. I said, 'This one is not important, and when you get your final, that you get certified to show to the marriage license clerk-' He said, 'What do you mean by certified?' 'Why,' I said, 'the clerk puts on it, "William F. Schneider, Clerk"-yes, "William F. Schneider, Clerk" '-and he sat there, sort of curious about the matter, and I said, 'Yes, it has written on, "William F. Schneider, Clerk," and then a seal is put on it;' and then he got so curious about the question of what certification was that I picked up a pen, and I am a very fair penman, and this other one was laying there, and I said, 'William F. Schneider, Clerk,' and I wrote it out like that (indicating). Now, that is about the same thing as is on there. Q. Did he ask you to do that? A. He didn't ask me to put 'William F. Schneider, Clerk; he asked me what certification was, and what it looked like certified, and I wrote it like the certification clerk. After I prepared it, it was lying before me on the desk, and we continued talking. When he got up ready to leave, he picks up the paper, and he started to fold it up, and he had it just about like this in his pocket (indicating), and I said, 'Where are you going with that?" And he said, 'I want to show it to Billie.' I said, 'Oh no, no; let's have that thing. I want that paper back.' And he said, 'Oh. forget about it. What's the matter with you? Don't cry over the thing. I will bring it down to you to-morrow.' He folded it up and put it in his pocket. That was very late in the afternoon, about 4 o'clock."

*

*

The respondent contradicts the complaining witness as to the time at which he was with him at Mr. Percy's office and in certain details of his testimony. He also testified that upon the night that, as he says, Brodbelt took the paper from his desk, he went to his house to recover it, but did not succeed in getting it, and he offers some other testimony in support of this claim. So that as to certain features there were questions of fact presented; but it is beyond controversy conceded by the respondent that, being the attorney of record of a party to a divorce action, which had not been tried, he prepared a paper which simulates in every detail a regular certified copy of an interlocutory decree of divorce, and that that paper was in the possession of his client; that subsequently that client accused him of having delivered to him a faked decree, and demanded back the money which he paid him; and that after taking the advice of his employer he had paid back that sum. His explanation of how and why this simulated certified copy of an interlocutory decree came to be prepared by him is incredible. The exhibit itself is convincing refutation of respondent's confused story of its manufacture, first, that it was prepared as a proposed decree to be submitted to the other side, and then that it was prepared to satisfy his client's curiosity. It is a complete paper, backed with a cover, fully indorsed, labeled "Interlocutory Decree," and the sheets fastened by eyelets.

[1] Upon a careful consideration of the whole case, we agree with the conclusion of the learned official referee, who reported:

"I am of the opinion that the bogus decree was prepared by the respondent and delivered to Brodbelt, that it might be proof of an interlocutory judgment, and that Brodbelt was cognizant of this purpose. I find the respondent guilty of misconduct as an attorney at law, as charged in the petition."

[2] The respondent was not inexperienced, having been 8 years at the bar at the time of this transaction. His confessed minutely elaborate simulation of a certified copy of a decree of the court is incapable of a rational and innocent explanation. His testimony, evasive and shifty in many particulars, makes a most unfavorable impression. We are of the opinion that it would not be safe to permit him to remain in the profession, whose duties and obligations he has violated. The manufacture and delivery of a paper purporting to be a certified copy of a judgment of the Supreme Court is a most serious offense.

The respondent should be disbarred. Settle order on notice. All

concur.

(192 App. Div. 235)

In re BOUGHTON.

(Supreme Court, Appellate Division, First Department. May 28, 1920.) Attorney and client44(2) -Attorney converting funds of client disbarred. An attorney, who converts the funds of a client and refuses to account for the same, is guilty of professional misconduct, and should be disbarred.

Disciplinary proceedings instituted by the Association of the Bar of the City of New York against Elbert S. Boughton, an attorney. Respondent disbarred.

Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ.

Einar Chrystie, of New York City, for petitioner.

Elmer E. Cooley, of New York City, for respondent.

CLARKE, P. J. The respondent was admitted to the bar in November, 1898, at a General Term of the Supreme Court held in the city of Rochester, county of Monroe, and was practicing as such in the First judicial district at the time of the transactions complained of.

The petition charges that in the summer of 1912 respondent requested Rev. Luther T. Townsend, an aged retired clergyman, to subscribe for certain bonds of the Santo Domingo Mining Company, of which respondent was president. He represented to Mr. Townsend that these bonds were to be issued for the purpose of building a mill upon the mining property of the company. Mr. Townsend informed the respondent that he had no money to invest in such bond,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

but finally, at the respondent's suggestion, Mr. Townsend employed him to dispose of certain property which he owned in Queens county, N. Y., with the understanding that the respondent was to invest the net proceeds of the sale of this property in the bonds of the Santo Domingo Mining Company, if they were issued at that time, or else to pay over the money to Mr. Townsend. The respondent sold the property and collected as the net proceeds of the sale over $2,000. The contemplated bond issue was abandoned, but the respondent, instead of paying over the money to Mr. Townsend, converted it to his own use.

In October, 1915, Mr. Townsend instituted a proceeding against the respondent for the recovery of the money. This proceeding resulted in the entry of an order directing the respondent to pay to Mr. Townsend the sum of $2,074.82. Upon his failure to comply with the terms of this order, an order was entered adjudging him guilty of contempt of court, and he was taken into custody and lodged in the Ludlow Street Jail, from which he was released upon the filing of a bond. The respondent appealed to the Appellate Division from the order directing him to pay over the money, but this appeal was dismissed. He thereafter appealed to the Court of Appeals, but this appeal was also dismissed.

The learned official referee states in his report that the evidence establishes the request and solicitation by the respondent for the subscription for the purpose named, his collection of the proceeds of property to be disposed of by him, the abandonment of the contemplated bond issue, the failure of the respondent to return the money to Townsend, and his refusal to account to him when requested. He further states in his report that, although the order in the summary proceeding was not of itself res adjudicata to the whole of the present proceeding, upon the evidence before him it must be held to have been a determination that the respondent was liable to Townsend for the repayment of the sum of $2,074.82. In addition thereto, the conversion of said sum and the respondent's refusal to account have now been independently established, and even shown by the answer and the cross-examination of the respondent, and he concludes that the conversion charged has been fully established, and that the respondent has been guilty of professional misconduct in the matter.

A careful consideration of the testimony and the briefs submitted convinces us that the finding of the learned official referee was entirely justified, and that there is no escape from the conclusion that the respondent was guilty of conversion.

It follows that he should be disbarred. Settle order on notice. All