Opinion
December 15, 1960.
Eric Nightingale of counsel ( Raymond P. Whearty with him on the brief), for petitioner.
George Trosk for respondent.
Respondent was admitted to practice in 1924 in the First Judicial Department. He is charged with professional misconduct in that he commingled and temporarily converted to his own use moneys belonging to a client. The Referee found and the respondent admitted that he had converted the proceeds of a tax refund check in the sum of $2,191.94 rightfully belonging to a corporation in which his client owned 50% of the stock. The Referee also found there was no failure to disclose receipt of the check, nor was there any intention to deprive anyone permanently of the proceeds thereof. The Referee's report is confirmed.
It appears that the delay in making prompt payment resulted from acute economic distress because of the failure of a business in which respondent had invested heavily, and also because he was in the hands of ruthless loan sharks. In further mitigation it might be noted that in 36 years of practice this is the first charge against respondent and that his wife had on deposit with a bank $10,000 worth of securities which she testified were at all times available to respondent and out of which payment was in fact made. Restitution was being arranged at the time of the filing of the complaint. While there was professional misconduct the mitigating circumstances persuade us that there should be extreme leniency.
Accordingly, it is recommended that the respondent be censured.
BOTEIN, P.J., BREITEL, STEVENS, EAGER and NOONAN, JJ., concur.
Respondent censured.