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INGRAHAM, P. J. [1] The respondent had a lease for an office in a building in the city of New York, and Dr. David L. Haight was the agent for the owners of the building. He failed to pay his rent, and gave two notes and two checks in payment, which were not paid, and an action was commenced in the Municipal Court of the city of New York to recover the amount represented by the notes and checks. The defendant demurred to the complaint, and, upon some arrangement made by the attorney for the owners of the building or by Dr. Haight, the respondent gave two notes for the amount then due, and the action was discontinued, and the notes and two checks previously given were surrendered to the respondent. These notes were dated July 19, 1910, one for $250, payable January 2, 1911, and the other for $248, payable on February 15, 1911. On January 2, 1911, when the first note became due, it was not paid, and an action was commenced in the City Court of the City of New York by the owners of the building to recover the amount thereof. In that action the respondent interposed a verified amended answer, alleging that this note was given in pursuance of an agreement with Dr. Haight, as representative of the owners of the building, whereby the action commenced in the Municipal Court of the City of New York was to be discontinued, without costs; it being expressly understood and agreed between the parties, and as a consideration for the withdrawal of the demurrer and the discontinuance of the action without costs, that the said plaintiffs or David L. Haight, their agent and representative, were to institute an action against Henry Block on the said lease, and that the defendant, the respondent herein, was to act as surety, and in the event that the said plaintiffs succeeded in recovering judgment against the said Henry Block, and found themselves unable to satisfy their judgment, then the plaintiffs were to assign the said judgment to the defendant, who was to pay to said plaintiffs the judgment so recovered, and that thereafter and pursuant to said agreement, and as collateral security, the defendant made, executed, and delivered the promissory note set forth in the complaint, it being expressly understood and agreed that no suit was to be commenced on said note, but it was simply to be held as collateral security, and in the event that the plaintiffs recover judgment against the said Henry Block, and after being unable to satisfy the judgment the defendant should refuse to comply with the agreement as aforesaid, then the plaintiffs were authorized and empowered to commence suit on said note. The date of this agreement is not stated in the amended answer, but it is alleged that it was made prior to July 19, 1910, the date of the notes. These allegations were made upon the knowledge of the defendant and not upon information and belief. The answer was verified by the defendant as "true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true." As there was no allegation upon information and belief, the verification was absolute. The defendant was required to furnish a bill of particulars in that action, and in that he stated:

"That heretofore and at the city of New York, during the month of June, 1910 (the precise date being unknown to the defendant), the defendant and

David L. Haight, acting on behalf of the plaintiffs, entered into the agree ment alleged and set forth in paragraphs marked 'fourth' and 'fifth' in the defendant's amended answer."

The plaintiff endeavored to have this case placed upon the preferred calendar in the City Court, which the defendant succeeded in defeating. Finally, when the action came on for trial, the defendant consented that the plaintiff should take judgment, and he did not then attempt to sustain his defense. In this proceeding the respondent was charged with committing perjury in swearing to this amended answer. The matter was referred to an official referee, who has reported that the amended answer was false, and the respondent committed perjury in swearing to it, and it is upon that report that the case now comes before the court.

The respondent is entirely uncorroborated as to the making of this agreement. Dr. Haight personally testified that he had no such agreement with the respondent; that he never saw the respondent from the time he leased the premises until he saw him before the grievance committee of the association of the bar; and that he never had any conversation with him regarding the giving of the notes. The attorney for the owners of the building testified that the notes were given to him on July 19, 1910, and that nothing was said about bringing suit against Henry Block, and that the action in the Municipal Court had been discontinued some time before as the result of a consultation between the attorney for the owners of the building and the partner or representative of the respondent, who stated that, if the action was discontinued, an arrangement would be made for the payment of the rent due. The attorney for the owners of the building further testified that the action in the Municipal Court was discontinued about the middle of June, and on July 19, 1910, the respondent came to the attorney's office; that an additional amount of rent had then become due; that the respondent fixed the dates at which. he could pay the notes; that the respondent himself drew up the two notes, and signed and delivered them to the attorney for the owners of the building. After the notes had become due, the respondent called on the attorney for the owners of the building and offered to pay $10 a month on the notes until the notes were paid, and the attorney for the owners of the building refused the offer, and respondent then said he would have to interpose an answer, to which the attorney said, "If you do that you commit perjury," to which the respondent replied, "Well, there are ways of putting in answers, and you can put an answer in any way," and then he left. He later interposed an answer and an amended answer.

An examination of this testimony satisfies me that the claim of the respondent that he made any such agreement is absolutely without foundation, entirely inconsistent with the testimony of the attorney for the owners of the building, and the whole story is improbable in itself. Block was not a party named in the lease. In it the respondent was described as the only lessee and the only party to it. Block, it seems, intended to occupy a portion of the offices, and the respondent procured him to sign the lease. It is unnecessary to decide whether

he might have been held responsible for the rent. The respondent was clearly responsible for the rent for which he had given notes and checks, and there was no reason why the landlord should be obliged to bring an action against Block as a condition to bringing an action against the respondent for the amount which he conceded that he owed for rent. There evidently was no consideration for the agreement he alleged, and the claim that the discontinuance of the action in the Municipal Court was consideration for the agreement was obviously unfounded. The discontinuance of the action in the Municipal Court was so obviously for the benefit of the respondent that it could not be any consideration moving to him for a contract with him; and it is also a fact that the action had been discontinued some time before the notes were given. The respondent was concededly indebted for this rent. He concededly gave his promissory notes, which were absolute promises to pay a sum stated at a day fixed by him to discharge that indebtedness. When sued upon the notes, he interposed what is obviously a false answer. After securing all the delay possible in consequence of serving this false answer, when the case was finally called for trial, he abandoned the defense and confessed judgment. This respondent does not deny that he owed the persons in whose favor the notes were executed the amount of money represented by them. The respondent did not testify that in the interview with Dr. Haight there was anything said about the notes being given as collateral security or any limitation upon the right of the plaintiffs to enforce them. The respondent testified that he told Dr. Haight:

"Now, here you are suing me, and you are letting the other man Block, who was a cotenant with me on the lease, go scot free. Now, I will tell you what I am willing to do. I am willing to pay this, but I would like you to commence an action against Block alone or against Block and myself, and if you can't recover on your judgment, if you can't make your judgment good against Block, then I will pay the judgment or give you some collateral security. I will give you my note."

To which Dr. Haight replied:

"Well, that sounds reasonable; it sounds fair, as long as you are willing to pay your obligation."

The utmost that could be said about this was that it sounded fair for the respondent to pay the obligation, and it might be said there was some kind of an implied understanding that he would sue Block. But the note was not given on that condition, nor was there any limitation upon the express promise contained in the note to pay the amount when it became due. I think it is clear that the whole defense was an invention of the respondent to avoid the payment of his obligation. That was renewed by his testimony before the official referee, which was also clearly false. Thus the respondent has been guilty of the of fense of putting in a false answer, which he personally verified, and has been guilty of perjury before the official referee in trying to avoid

the result of his offense.

[2] The question is whether an attorney guilty of such conduct should be permitted to remain a member of the profession. If an attorney acting for a client had interposed an answer which he knew to

be false, and had thereby induced his client to commit perjury, we should have no hesitation in disbarring him. I think the same result should follow when a lawyer, sued on an admitted indebtedness, interposes an answer which is false for the purpose of avoiding or postponing the payment of the debt.

There can be no question, I think, but that such conduct requires that the respondent should be disbarred; and it is so ordered. All

concur.

MCCARTY v. DOWNES et al.

(Supreme Court, Appellate Division, First Department. April 3, 1914.) 1. MORTGAGES (§ 427*)-FORECLOSURE BY ACTION-PARTIES.

Where real estate was devised to testator's children, and upon foreclosure of a second mortgage all were made defendants, and two who were the executors, with power to sell, bought it in as such and later sold it, the others were not proper or necessary parties to the subsequent foreclosure of the first mortgage, as their interest was cut off by the first foreclosure, and the executors in buying the property in represented the estate rather than the devisees.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1269, 12721287; Dec. Dig. § 427.*]

2. EXECUTORS AND ADMINISTRATORS (§ 148*)-MANAGEMENT OF ESTATE-REAL PROPERTY.

Executors have no right as such to purchase land, and, if they invest in land, it is considered personalty, which they may sell, and for which they are accountable as such, and therefore executors, with power to sell, who purchased real estate owned by testator at a foreclosure sale, could sell the same so as to pass title free from any claim of the testator's devisees or representatives; the sale being doubly protected by the power of sale.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 595-601; Dec. Dig. § 148.*]

3. EXECUTORS AND ADMINISTRATORS (§ 148*)-MANAGEMENT OF ESTATE-REAL PROPERTY-SALE.

Where executors, with power to sell, purchased testator's realty at foreclosure, if a sale thereof by them to the wife of one was voidable, it was a matter to have been considered upon their accounting, and did not affect the title of those claiming thereunder, particularly after the lapse of more than ten years without any question being raised.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. $$ 595-601; Dec. Dig. § 148.*]

4. MORTGAGES (§ 534*)—FORECLOSURE BY ACTION-OPERATION AND EFFECT. Where the executors, with power to sell, who purchased testator's realty at foreclosure of a second mortgage, to which the devisees were parties defendant, and who later sold it, were subsequently made parties to the foreclosure of the first mortgage along with the purchaser from them, the purchaser at the foreclosure sale under the first mortgage took title free from any claim of the testator's devisees or representatives.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1555; Dec. Dig. § 534.*].

Appeal from Special Term, New York County.

Action by John H. McCarty against Anna M. Downes and another to foreclose a mortgage. From an order requiring the purchaser at

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

the foreclosure sale, Joseph B. Weed, to complete the purchase, the said purchaser appeals. Affirmed.

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

Bernard I. Finkelstein, for appellant.

Carroll & McCormack, of New York City (Henry M. Bellinger, Jr., of New York City, of counsel), for respondent.

CLARKE, J. [1] This action was to foreclose a mortgage upon 174 West Seventy-Sixth street. Judgment for foreclosure and sale was duly entered September 23, 1913. The premises were sold by a referee under the usual terms of sale to Joseph B. Weed for $1,350, the highest bid above the amount of the first mortgage of $17,000. On the closing day the purchaser refused to accept the referee's deed and pay the balance due. He refused to give specific reasons for his rejection, except to state that the title was bad and unmarketable and a title company had refused to insure it. Thereafter a motion was made to compel him to take. From the order granting the motion he appeals.

Title to the premises in question vested in Sarah E. Lowther by deed from James B. Fonner and wife, dated May 31, recorded June 6, 1887. Mrs. Lowther executed a mortgage thereon for $19,250 to Mary E. Garrison dated and recorded July 22, 1887, and also a second mortgage thereon for $6,000 to Garret L. Schuyler dated and recorded July 22, 1887, subsequent to the aforesaid. Said $6,000 mortgage was assigned to Walter G. Schuyler by his father, Garret L. Schuyler, on June 12, recorded June 14, 1888. This assignment was to prevent a merger, for by deed dated June 12, recorded June 14, 1888, Mrs. Lowther conveyed to Garret L. Schuyler the said premises subject to the aforesaid first and second mortgages.

On April 20, 1889, Garret L. Schuyler died seised in fee of said premises, leaving a will which was probated May 22, 1889. Said will provided:

"Second. Any residue I give, devise and bequeath to all my children now surviving in equal proportions."

The will conferred upon his executors full power of sale of all his real estate. Nine children survived him. Walter G. and James E. Schuyler, two of his children, were named as executors, and letters testamentary were issued to them June 4, 1889.

Thereafter the second mortgage, for $6,000, was foreclosed by advertisement. All of the nine children were parties defendant, were duly served, and had notice of all proceedings. No question is made as to the regularity of said foreclosure. The premises were purchased on the sale by the executors of Garret L. Schuyler as such executors. The deed to them was recorded April 11, 1896.

By deed dated September 17, 1901, the executors conveyed the said premises to Jennie B. Schuyler, wife of Walter C. Schuyler, one of the executors. This conveyance was made subject to all mortgages and liens and was supported by a consideration of $6,000.

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