In re Katz

230 A.D. 172, 243 N.Y.S. 96, 1930 N.Y. App. Div. LEXIS 8573
Appellate Division of the Supreme Court of the State of New York·Decided June 6, 1930·Published·Cited by 2 cases

Opinion

Dowling, P. J.

The respondent was admitted to practice as an attorney and counselor at law in the State of New York, at a term of the Supreme Court of the State of New York, Appellate Division, Second Department, on April 4, 1923.

The petition charges that respondent has been guilty of misconduct as an attorney at law in the improper solicitation of retainers from persons having claims for personal injuries, and in the presentation, prosecution and collection of fraudulent claims for personal injuries and property damage alleged to have been sustained. A supplemental petition charged misconduct in that he commenced actions in the Municipal Court of the City of New York, Borough of Manhattan, Second District, and issued and filed summonses in such actions in which he falsely and fraudulently misstated the addresses of the respective plaintiffs in order to deceive and mislead the court and the defendants to whom the summonses were addressed.

The matter is now before the court on a motion for such action as the court may deem just and proper, following the filing of the report of the learned referee to whom the matter was referred [173]*173to take testimony regarding the charges and to report the same with his opinion thereon to this court.

On the charge of improper solicitation it appears that following his admission, in 1923, he had no negligence cases during that year. In 1924 he had about 30 accident cases; in 1925 he had 82; in 1926 his business jumped to 533 cases, and in 1927 he had 1,193. With few exceptions, the actions were brought in the Municipal Court of the City of New York, Borough of Manhattan, Second District. Respondent’s testimony is that he represented garages catering almost exclusively to taxicab owners, taxi owners associations, a co-operative association composed of installment dealers, several coat and apron supply laundries, and other associations; that the suits were mostly by chauffeurs, members of these various associations. He testified that his various clients came to him without solicitation, except some of them were recommended by various taxicab people, friends of theirs, or the owners of garages, or his cousin in the insurance business who wrote their business for them, but outside of that nobody ever solicited them; further, I want to say this, that the average settlements in the cases were nominal, so much so that they just barely paid a little over and above the actual disbursements and the time and the help and whatever I had in the office; very many of them were for small property damage claims, and many of them were for a greater amount.” Other than showing the numbers of actions instituted, no attempt was made by petitioners to controvert respondent’s denial of soficitation. The referee states in his report: “ This statement [that the business came to him without solicitation] was not controverted by the petitioners, and although the fact of so many suits brought by a young lawyer, who had only been practicing law two or three years, is very suspicious, yet in view of an uncontradicted explanation, which on its face is plausible, I feel bound to report that in my opinion the charge should be dismissed for want of sufficient evidence to support it.”

On the false address charge, the record shows it was tbe custom in the respondent’s office to put upon the printed summonses, under the heading left in blank for that purpose “ Plaintiff’s Address,” addresses without regard to whether it was the true address or not. The testimony is that some of the addresses used Were those of public schools, a private hospital, a parochial school, loan office, commercial buildings, vacant lots, and many were purely fictitious. Miss Helen Turlcfield, who testified she was in respondent’s employ as a stenographer from 1916 to 1930, gave the following testimony: “ * * * When I first started working for Mr. Katz this girl Shirley told me to bring the cases in the Manhattan Second District [174]*174because most of the clients lived in the Second District, and Shirley-had said I was to bring all the cases in the Second District Court. I said: ‘ If the plaintiff lived in Brooklyn, where shall I bring the action? ’ She said, ‘ Give any address as long as you bring it on the east side.’ The clerk usually looks to the summons. I didn’t ask any other question, but I just did that and didn’t question it. * * * By the Referee: Q. You want me to understand that Miss Shirley told you in putting down the addresses on these summonses to put any address there so long as it was within the Second Municipal District? A. Yes. Q. Without regard as to whether it was a true address or not? A. Yes. Q. She told you that, do you say? A. Yes.” . __

When respondent in August, 1928, knew that this witness had indulged in these practices, he continued her in his employ for nearly a year, the blame being placed on Miss Shirley’s instructions to her.

Respondent’s testimony is that he did not examine the summons to see what address was given to show the plaintiff’s address; that was mere routine in the office and was left to the clerk and the girl. He offered no better explanation. The following is an extract from his cross-examination: “ Q. Now I ask you whether you consider it an honest thing to have said to the Municipal Court that John Jones lived at one address, whereas in truth and in fact he lived at another? Do you consider that honest or not? A. I don’t consider it dishonest. I don’t see where it prejudices anybody. Today the Municipal Court have jurisdiction — Mr. Harper: I move to strike out the last part of the answer. Motion granted.”

The referee stated that he could not avoid the inference that in resorting to false addresses on the summonses respondent’s employees were acting under the instructions of respondent, who, upon his own statement, did not see anything dishonest in such misleading of the court. The referee said: “Even if he did not give such instructions I am unable to see how such a reprehensible custom could have been carried on for years without his knowledge.” This court cannot believe that respondent was unaware of what was being done. The provisions of the Municipal Court Code entitle a defendant to have a case moved to the district where he resides or has his place of business, if the action is commenced in a wrong district. It is presumed that respondent knew that. Whatever the motive was, respondent cannot escape responsibility for the deception practiced upon thé court and the defendants in the actions by feigning ignorance of what was being systematically done in his office. ■

As to the charges involving the presentation, prosecution and collection of fraudulent claims, the report of the referee covers two [175]*175instances, which he designates as the Scheiner case and the Yellow Taxicab fraud. As to these, the record shows:

(1) The Scheiner case. In January, 1925, respondent instituted an action in the Municipal Court of the City of New York, Borough of Manhattan, Second District, entitled Harry Scheiner against the Coney Island Laundry Company for $1,000 damages for personal injuries alleged to have been sustained as the result of an alleged collision between the laundry company’s horse and wagon and the taxicab which Scheiner was alleged to have been operating. The defendant answered. A physical examination was held at respondent’s office. Respondent negotiated for a settlement and finally settled with the insurance company interested for $75.

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In re Katz, 230 A.D. 172, 243 N.Y.S. 96, 1930 N.Y. App. Div. LEXIS 8573 (N.Y. Ct. App. 1930).

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