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In re STANTON.

(Supreme Court, Appellate Division, First Department. April 3, 1914.)

ATTORNEY AND CLIENT (§ 54*) — DISBARMENT PROCEEDINGS
CHARGE OF CRIME.

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Under Judiciary Law (Laws 1909, c. 35 [Consol. Laws, c. 30]) § 88, subd. 2, as amended by Laws 1913, c. 720, authorizing the Appellate Division of the Supreme Court to disbar an attorney who is guilty of crime, his disbarment is not dependent on his conviction, as it is under subdivision 3, providing for the striking from the roll of attorneys of the name of an attorney convicted of felony; so that the bar association having presented to the Appellate Division a charge of perjury against an attorney, who has not been indicted, the referee to whom the matter is referred should take and report the testimony of respondent as well as of petitioner, with his opinion thereon.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 73; Dec. Dig. $ 54.*]

In the matter of Willard G. Stanton, an attorney, on charges preferred by the bar association. Report of referee set aside, and case remitted to him.

See, also, 156 App. Div. 944, 141 N. Y. Supp. 1147.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Henry S. Hooker, of New York City, for petitioner.

J. Quintus Cohen, of New York City, for respondent.

PER CURIAM. The association of the bar of the city of New York presented charges that the respondent had committed perjury on the trial of an action in the Municipal Court of the City of New York, wherein he was the defendant, in the defense of that action. The respondent seems to have interposed an answer denying the charges. Whereupon this court referred the matter to one of the official referees "to take testimony in regard to the said charges and to report the same with his opinion thereon to this court." The matter came on before the official referee to whom it had been referred, and the petitioner submitted testimony to prove the charges. Thereupon the official referee, without calling on the respondent to submit any testimony on his part, filed his report, in which he said:

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"It is conceded, however, that the perjury, if any, was not committed in his character as attorney, but as defendant litigant in a civil action. Should he be tried for that offense in this proceeding, in no sense a criminal proceeding, he would not only lose the right of trial by jury, but might be convicted on evidence not conclusive beyond a reasonable doubt. In my judgment the respondent should not be burdened with this imputation in advance of his trial for the crime of which he is accused. Let him be tried for that felony, and conviction would ipso jure operate his disbarment.

The learned official referee has misunderstood the duty that devolved upon him. The matter was referred to him to take the testimony. He has taken the testimony of the petitioner, and he does not report that on the testimony presented the charges have not been sustained. It does not appear from the record that criminal proceedings have been

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

instituted, nor that the respondent has been indicted, nor did the respondent ask to have the proceedings suspended while criminal charges were investigated. By subdivision 2, § 88, Judiciary Law (chapter 35, Laws of 1909 [Consol. Laws, c. 30], as amended by chapter 720, Laws 1913):

"The Appellate Division of the Supreme Court in each department is authorized to censure, suspend from practice or remove from office any attorney and counselor at law admitted to practice as such who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice."

And by subdivision 3 of section 88:

"Whenever any attorney and counselor at law shall be convicted of a felony, there may be presented to the Appellate Division of the Supreme Court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys."

Under subdivision 2 of section 88, the disbarment of an attorney who has committed a crime would not be dependent upon his conviction for that offense as it is under subdivision 3, and when an attorney is charged with the commission of a crime it is the duty of the Appellate Division to investigate and, if the charge is proved, disbar him. The fact that he has not been indicted or convicted is not a defense in proceedings of this character, as then, no matter what crime an attorney had committed, if he was not prosecuted criminally, he could still remain a member of the bar. This court has no control over criminal prosecutions, but it is charged with the duty of preventing criminals from continuing members of the bar. While this court, when an attorney has been indicted, may suspend the proceedings until after the trial on the indictment, yet, when an attorney has not been indicted, the fact that he could be if the charge is true, is no reason why the court should not investigate the charge.

This court has referred the matter to the official referee to take testimony in regard to the charges against the respondent. He has taken the testimony of the petitioner, but apparently of his own motion has reported that the charges should be dismissed without giving the respondent an opportunity to present his testimony. He should have that opportunity.

The report is therefore set aside, and the case sent back to the official referee to take whatever testimony the respondent may offer, and then report back all the testimony with his opinion thereon to the court.

DORNHOEFER v. FARLEY, State Excise Com'r, et al.

(Supreme Court, Appellate Division, Second Department. March 27, 1914.) 1. INTOXICATING LIQUORS (§ 242*)-FORFEITURE OF LICENSE-CONVICTION. The state may prescribe as a condition of the right to sell liquor that such right shall be forfeited by a conviction for the violation of the liquor tax law, even though sentence is suspended, and thereby the right of apFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

peal be denied, since a person may sell liquor only under such conditions as the state may impose.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 356361; Dec. Dig. § 242.*]

2. CONSTITUTIONAL LAW (§§ 250, 271*)—Due ProceSS OF LAW-EQUAL PROTECTION OF LAW-INTOXICATING LIQUORS-STATUTES-DIFFERENT REGULATIONS FOR DIFFERENT LOCALITIES

“CONVICTION."

Liquor Tax Law (Consol. Laws, c. 34) § 2, defines "conviction" to mean guilt resulting from a plea of guilty, the decision of a court or magistrate, or the verdict of a jury, regardless of the pronouncing of judgment or the suspension thereof, and no right of appeal from such conviction exists in greater New York if the sentence is suspended, but the liquor license may nevertheless be forfeited for such conviction. Code Cr. Proc. § 750, as amended by Laws 1907, c. 685, gives to liquor dealers outside of greater New York the right to appeal from a conviction where sentence is suspended. Held, that a liquor dealer in greater New York is not thereby deprived of his property without due process of law, or unjustly discriminated against, since it is permissible that liquor dealers may be subject to diverse regulations in different localities, and since the right of appeal is not a constitutional guaranty, but may be granted to one class of litigants and denied to another.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 711713, 760; Dec. Dig. §§ 250, 271.*

For other definitions, see Words and Phrases, vol. 2, pp. 1584-1591.]

3. INTOXICATING LIQUORS (§ 19*)-CONSTITUTIONALITY OF STATUTE-DIFFERENT REGULATIONS FOR DIFFERENT LOCALITIES.

No rights of the liquor dealer preserved by the federal Constitution were thereby impaired.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 25; Dec. Dig. § 19.*]

Appeal from Special Term, Kings County.

Action by George Dornhoefer against William W. Farley, as State Commissioner of Excise, and another. From an order denying an injunction pending trial, the plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

Marcus E. Joffe, of New York City, for appellant.

Charles R. O'Connor, of Hobart (Paul Kahan, of Brooklyn, on the brief), for respondents.

THOMAS, J. The appeal is from an order denying a motion to enjoin, pending trial, the commissioner of excise and his special deputy from enforcing the civil penalties entailed by the defendant's conviction in Special Sessions for selling beer on Sunday to policemen.

The appellant's argument is this: The defendant was found guilty; sentence was without his consent suspended; section 2 of the Liquor Tax Law (Consol. Laws, c. 34) defines conviction to mean guilt resulting from plea of guilty, the decision of a court or magistrate, or the verdict of a jury, "irrespective of the pronouncing of judgment or the suspension thereof"; the person so convicted cannot appeal to the Supreme Court (People v. Flaherty, 126 App. Div. 65, 110 Ñ. Y. Supp.

'For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

699); persons similarly situated outside greater New York under section 750 of the Code of Criminal Procedure, amended by chapter 685 of the Laws of 1907, can appeal, or within greater New York persons convicted and sentenced can appeal. Therefore, if the liquor certificate be seized pursuant to the present conviction, the defendant will be deprived of his property without due process of law and denied equal protection of the law. Such is appellant's contention.

[1] Consideration of simple principles disposes of the appeal. The defendant may sell liquor only under such conditions as the state may impose on his occupation. Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; People v. Meyers, 95 N. Y. 223, 225. The condition imposed is that, if he be found guilty of violating the Liquor Tax Law in certain particulars, he shall, even if sentence be suspended, whereby appeal is denied, forfeit his right to sell liquor. This law within greater New York prevails with uniformity. So the appellant's right to sell liquor was among other things, conditioned upon forfeiture following conviction without appeal.

[2] The question, then, is whether the condition was beyond the power of the state. The license to sell liquor is subject to burdens cast upon it by the statute. Matter of Livingston, 24 App. Div. 51, 48 N. Y. Supp. 989. It has become a recognized status of the law that the several divisions of the state may be governed by widely diverse statutes relating to traffic in liquor. Such statutes have commonly placed limitations upon the city of New York that do not exist elsewhere. Metropolitan Board of Excise v. Barrie, supra. Indeed, in localities the right to sell liquor often is denied, if the voters of the community so direct, and the exercise of even the delegated power is valid. Village of Gloversville v. Howell, 70 N. Y. 287, 291. So a political division is, or may be made, a unit for the adaptation of special provisions and conditions. It seems a somewhat mild exercise of the police power to provide that in the city of New York the convicted holder of the license may escape punishment by suspension of sentence, but that in such case he may not appeal, although the right to appeal be extended to those in other municipalities. The right to appeal is not a constitutional guaranty (People v. Rutherford, 47 App. Div. 209, 62 N. Y. Supp. 224), and the denial of it to a class of litigants and the granting of it to other classes is a legislative prerogative.

It does not appear that the appellant at the time his sentence was suspended expressed disapproval of his escape from penalty. Had he been sentenced, he could have appealed; but the forfeiture would have resulted. Liquor Tax Law, § 36, subd. 2. It is unnecessary to consider the possibility of his staying, pending appeal, the enforcement of the forfeiture and a reversal of the judgment. That is entirely problematical. But the exact question is: Must an appeal lie in the city of New York, if it is given in other parts of the state, or otherwise the suspension fail to have the force of a conviction whereon the forfeiture of the license can be based? The history of the regulation of the liquor traffic compels a negative answer.

[3] It is hardly necessary to add that there is no impairment of any right preserved by the federal Constitution. Beer Co. v. Massachusetts,

97 U. S. 25, 33, 24 L. Ed. 989; Kidd v. Pearson, 128 U. S. 1,9 Sup. Ct. 6, 32 L. Ed. 346.

The order should be affirmed, with $10 costs and disbursements. All

concur.

BOUKER CONTRACTING CO. v. NEALE et al.

(Supreme Court, Appellate Division, Second Department. April 3, 1914.) JUDGMENT (§ 153*) — VACATION WANT OF JURISDICTION IRREGULARITY

STATUTES. Code Civ. Proc. § 1282, provides that a motion to set aside a judgment for irregularity shall not be heard more than one year after the filing of the judgment roll. Section 420 provides that judgment may be taken without application to the court where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay money or an express or implied contract to pay money received or disbursed, and demands judgment for a sum of money only, and sections 1212 and 1213 provide for the clerk's entry of judgment in such actions for default in appearance or pleading, and that in other cases plaintiff must apply to the court. Pending an action upon a complaint embracing a cause of action on contract for money and one in tort arising out of the same transaction for damages and after appearance by defendants, plaintiff without defendants' knowledge or application to the court entered judgment for the amount claimed. Held that, as one cause of action was within the statute and one without it, judgment entered by the clerk was a nullity and would be vacated after the expiration of a year; the distinction being that error in a proceeding prescribed by the practice of the court is an irregularity, but that where the proceeding itself is unwarranted it is a nullity.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 300-304; Dec. Dig. § 153.*]

Appeal from Special Term, Nassau County.

Action by the Bouker Contracting Company against Herbert H. Neale and another, etc. There was an order denying the defendants' motion to vacate judgment and they appeal. Reversed, and motion granted.

Argued before JENKS, P. J., and THOMAS, CARR, RICH, and STAPLETON, JJ.

William G. Cooke, of New York City, for appellants.
William H. Wurts, of New York City, for respondent.

STAPLETON, J. The order as amended denied the defendants' motion to vacate a judgment.

On the 28th day of May, 1909, the Bouker Contracting Company, the respondent herein, began an action against defendants-appellants by the service of a summons and verified complaint upon the defendant Hailey. The complaint embraced two causes of action-one in contract for $330, and one in tort, arising out of the same transaction, for $100. The contract was in connection with the hiring of a scow; the cause of action in tort alleged careless, negligent, and improper use of the scow. The prayer was for judgment in the sum of $430, with interest and costs. Notice of appearance and demand was served

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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