Opinion
April 18, 1972.
John G. Bonomi of counsel ( Patrick J. Moynihan with him on the brief), for petitioner.
Horace I. Gordon for respondent.
Respondent was admitted to the Bar in the First Department in 1946. He is charged with the conversion of funds entrusted to him as escrowee. The Referee has found that the charge has been sustained.
We agree with the learned Referee that there was a conversion in that during the life of the escrow agreement respondent drew against his special account in which the escrow funds were deposited to the extent that the balance in that account was less than the amount of the escrow, and that when payment was called for the account was overdrawn. However, we find that the credible evidence allows the conclusion that the respondent was both willing and able to restore this fund and carry out the escrow on the due date if the payee of the fund was willing to accept this solution.
We cannot, however, condone respondent's handling of the funds entrusted to him, and the fact that this may be due to mismanagement rather than misconduct is not completely exculpatory. It has often been said that the object of disciplinary proceedings is protection of the public and conduct, even though not vicious, which endangers the public must result in the applicable sanction.
The respondent should be censured.
McGIVERN, J.P., NUNEZ, McNALLY, STEUER and TILZER, JJ., concur.
Respondent censured.