The respondent was admitted to practice as an attorney and counselor at law in the State of New York on October 3, 1912, at a term of the Appellate Division of the Supreme Court, Second Department. '
In the petition herein he is charged with the conversion of the sum of $140, which he had collected on behalf of a client, from about July 10, 1930, the date of collection, until December, 1930, when payment was made to the client, after the matter had been called to the attention of the Bar Association.
*405The respondent answered, and the matter was referred to an official referee to take testimony in regard to the charge and to report the same, with his opinion thereon, to this court. The learned referee has duly reported, finding the respondent guilty as charged, and the petitioner now moves that this court take such action in the matter as it may deem just and proper.
The facts are not in dispute. The respondent admitted making the collection and using the money to pay his landlord for arrears of rent of his office. His defense was that the client consented to his use of the money.
The record shows that respondent collected the money in July, 1930. Thereafter respondent repeatedly promised to send complainant a check “ within a week or ten days.” These promises were not kept. In November, 1930, the complainant brought the situation to the attention of the petitioner’s committee on grievances and made an affidavit in which he stated that he had not “ authorized respondent to retain any part of the money thus collected as a loan or otherwise for any period of time.” In December, 1930, and after a date had been set for a hearing before the petitioner’s committee on grievances, the complainant received from the respondent fifty dollars in cash and two postdated checks to cover the balance of ninety dollars, which were subsequently paid. In March, 1931, after the petition herein had been filed in this court, the complainant, at respondent’s request, made an affidavit, which the respondent annexed to his answer, in which the complainant stated “ that the reception, cashing and temporary use of the proceeds of the check herein were with his knowledge and consent.” In his testimony before the official referee the complainant is careful not to say that he consented to the respondent using this money as his own. He did try, however, to go as far as he thought he safely could in helping this respondent.
Upon this record the contradictory positions taken under oath by the complaining witness as to whether or not he had authorized the respondent to retain any part of the money collected, as a loan, weakens much the reliance to be placed upon his testimony. The official referee in his report states, “ I am constrained, however, to report, in view of the respondent’s own testimony that he retained this money from July, 1930, until February, 1931, that the charge contained in the petition presented by the Association of the Bar of the City of New York has been proven.” There is nothing in the record which would justify our reaching a contrary conclusion.
. There remains then only the question of the measure of the discipline. During part of the time in question the respondent *406was not well. It is also evident that his financial condition was not healthy. It is urged that the relationship between this respondent and the complainant while apparently that of attorney and client might be regarded perhaps as that of a friend seeking to help the complainant; the money, however, came into the possession of respondent as attorney for the complainant. It also appears that before the committee of the Association of the Bar the respondent answered all questions frankly and fairly. Notwithstanding all this, we cannot ignore the fact that the charge of conversion against the respondent has been proven. Ordinarily, this would merit suspension or more, but in view of all the circumstances it is the judgment of the court that the respondent be censured.
McAvoy and Sherman, JJ., concur; Merrell and Martin, JJ., dissent.