In re O'Sullivan

Ingraham, J.:

Michael O’Sullivan was admitted to practice as an attorney and counselor at law in July, 1895. Sometime after his admission it appears that he was appointed a deputy fire marshal in the city of New York, and in the performance of his duties he made charges against one Adolph Meyer for setting fire to a tenement house in the city of New York. Meyer was indicted by the grand jury, p>leaded guilty and was sentenced to imprisonment for twenty years. Subsequently the respondent lost his position as fire marshal and was appointed a deputy tax commissioner of the city of New York. While deputy tax commissioner the wife of Meyer applied to the respondent to secure the release of her husband. The respondent went to Sing Sing prison where Meyer was confined and had an interview with him. Shortly after this visit to Sing Sing Meyer’s wife again called on the respondent and said that she had received a letter from her husband telling her to call upon him; that she had $300 which she would be willing to pay if she had any reasonable assurance that her husband could be pardoned. Mrs. Meyer’s testimony is that. the respondent first suggestecl to her that she should place $300 in money that she then had in his hands and that he .would get her a lawyer; that after conversation with her brother-in-law Mrs. Meyer went h> the respondent who said that he could get her husband out; that she then gave him the money and lie gave her the following receipt:

“ Received from Mrs. Emily Meyer $300 to be used for legal services in procuring the discharge from State’s prison her husband, Adolph Meyer, $250. to be returned in case said, prisoner is not discharged.

“(Signed) MICHAEL O’SULLIVAN.”

The respondent’s account of this interview was that the woman told him that she was willing to pay the $300 if she had any reasonable assurance that this man could be got out on a pardon; that the respondent told her that he was a deputy tax commissioner and was not- practicing law, but that if she decided on paying the money and made him custodian of the money he would secure an attorney for her in the matter; that she conferred with somebody and then came back and deposited the $300 with him,when he gave her the foregoing receipt; that it was agreed that he was to engage an attorney and was to pay him a retainer of $50. The respondent also testified that he did engage an attorney and paid him $50. This attorney did nothing in the matter of securing a pardon for over a year, when he died. The respondent then tried to get some of the papers from him, but finally gave it up. He then communicated with Mrs. Meyer and said that he would have to get another attorney, to which she said “All right;” that he thén employed another attorney to whom hepai'd $25. This other attorney did nothing and things remained in this, situation until the spring of 1905 when the' respondent got signatures to a petition for the pardon of Meyer, which petition was presented to the Governor. Subsequently the respondent went to Albany and saw the Governor about it, but the application for a pardon was denied. In September, 1905, Mrs. Meyer commenced an action in the Municipal Court of the city of Hew York to recover from the respondent $250 whicli he agreed to repay to her in case no pardon was granted. He interposed a verified answer in that action in which he alleged that -lie was an attorney and counselor at law and that he was. employed and acted as an attorney at * 8 ‘ law in the matter which was then and for some time past had been pending and still was undetermined, and that the defendant had been paid by the plaintiff a sum for such services. Upon the trial of that action the defendant was called and examined as a witness and testified that in 1903 the plaintiff brought $300 to him and deposited the $300 with him and engaged his services to secure the discharge of Meyer from State’s prison; that the understanding at the time of the deposit was that he was to use $50 of the money, for his services and keep it all in case her husband was discharged. Judgment was ordered in the Municipal Court for the plaintiff against the respondent for the sum of $250, from which no appeal was ever perfected, but the plaintiff in that action was unable to -collect the judgment. Subsequently these facts were laid before the Bar Association when this proceeding was instituted. The respondent claims that of this $300 he paid out $75 to these two attorneys, but he does not deny that he appropriated the balance to his own use. If, as he now claims, he was not retained as an attorney at law, but was a simple custodian.of the money, it seems clear that he misappropriated to his own use money that was deposited with him for the specific purpose of procuring the services of an attorney to secure a pardon from the Governor, and that he committed perjury in the Municipal Court action. If he took the $300 from this woman for his services as an attorney to procure a pardon for her husband, agreeing to return to her $250 in case he was not successful and immediately spent the $250, refused to return the money on demand, and after it had been decided that he was liable to repay fit to her, still refused to pay it, he was guilty of misconduct which requires his disbarment.

It is quite clear that under the circumstances thus disclosed the respondent is not a proper person to be a member of the bar*. His own testimony shows that he lacks both integrity and truthfulness, and with such a.-character he should not be continued in that position.

It follows that the report of the referee should be confirmed and the respondent disbarred.

Patterson, P. J., Clarke and Houghton, JJ., concurred; Laughlin, J., dissented.