In re Eisenberg

173 A.D. 598, 160 N.Y.S. 143, 1916 N.Y. App. Div. LEXIS 7618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1916
• Status: Published

Opinion

Clarke, P. J.:

The respondent was admitted to the bar in October, 1913. The misconduct charged is the conversion of moneys collected on behalf of one Frank Schuler, a client. On or about March 15, 1915, the respondent received from Mrs. Anita de Forest her check for $136 in payment of her indebtedness to Schuler. The respondent thereafter indorsed and delivered the check to one Israel Eisenstein, another client to whom he was indebted, with directions to put it through his bank and apply the proceeds upon the respondent’s account with him. Before depositing the check Eisenstein sent it to the bank upon which it was drawn for certification. The bank refused to certify the check on the ground of insufficient funds, and the respondent was notified accordingly. Eisenstein, at the respondent’s request, then deposited the check in his own bank, and on March 16, 1915, it was paid by the bank upon which it was drawn.

The respondent did not pay Schuler the moneys due him, and upon inquiry told Schuler that the check had been returned by the bank for insufficiency of funds. Sometime in May, 1915, Mrs. de Forest exhibited to Schuler the paid check which she had given to the respondent, and Schuler thereupon called at the respondent’s office and demanded payment. The respondent did not promptly comply with this demand, and Was thereafter served with a copy of the present charges. He then gave Schuler his check for the moneys due him, and knowing the same to be uncollectible, gave Schuler’s wife sixty dollars in cash and two checks of third persons before his own check was returned by the bank. These two checks also proved uncollectible, as did a third which the respondent gave in their place. On July 22, 1915, shortly before his hearing before the committee on grievances of the Bar Association, the respondent settled his indebtedness with Schuler. Ho claim was made, and there was no evidence from which it might be inferred that the respondent knew that the several checks of third persons which he gave Schuler would be returned unpaid.

The respondent concedes that his conduct amounted to a conversion of his client’s moneys. As an extenuating circumstance, however, he claimed to have been ignorant of the fact that the check of Mrs. de Forest had been paid, and to have intended to remit to Schuler the money due him immediately upon learning of such payment. He testified that upon inquiry he was frequently informed by Mr. Eisenstein that the check had not been paid. The defendant called Israel Eisenstein to corroborate his testimony, but the witness denied that he had ever informed the respondent that the check had not been paid. At the close of his examination the respondent suggested that it might have been Israel Eisenstein’s son Harry who informed him of the non-payment of the check, and an adjournment was granted for the purpose of calling the younger Eisenstein as a witness. On the adjourned day Harry A. Eisenstein testified that he knew of the bank’s refusal to certify the check, and that it had thereafter been deposited to the credit of the firm, composed of his father and himself. He further testified that he assumed, without any knowledge on the subject, that the check had not been paid, and so informed the respondent upon his inquiring as to such payment.

In his report the referee finds that “ this testimony must be considered as not quite meeting the respondent’s case. Hiving to him the utmost benefit of it, as far as it goes, and considering the other features of the case in the light most favorable to him, it still clearly appears that the respondent by transferring the check in question to Israel Eisenstein with the direction that the proceeds should be credited on account of his prior indebtedness for moneys collected and retained by him, became guilty of the conversion of the money which he should have paid over to Schuler, and it also remains clearly established that he unduly delayed a settlement with Schuler. * * * The respondent pleads youth (he was twenty-three years old at the time of the conversion), inexperience and mental worry on account of his wife’s illness as a partial excuse, and regrets the occurrence and prays for a merciful disposition of his case, for which it seems he has presented reasons which deserve consideration. He has also submitted affidavits on character.”

The respondent has been guilty of misconduct in his office as attorney which cannot be overlooked. He is, therefore, suspended from practice for one year, with leave to apply for reinstatement at the expiration of that term upon proof of his compliance with the conditions to be incorporated in the order to be entered hereon.

Laughlin, Soott, Smith and Davis, JJ., concurred.

Eespondent suspended for one year. Order to be settled on notice.