Opinion
April 4, 1960
Present — Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ.
Respondent was admitted to practice by this court on June 12, 1929. On February 13, 1959 the Nassau County Bar Association petitioned this court (No. 153) to discipline respondent. Respondent filed an answer, verified April 7, 1959, denying the allegations of the petition. By order entered June 15, 1959 this court granted petitioner's motion to substitute an amended petition in place of the original petition and directed respondent to serve an answer to the amended petition within 10 days after service of a copy of the amended petition and a copy of the order of June 15, 1959. On June 19, 1959 a copy of the amended petition and a copy of the order of June 15, 1959 were served by mail on respondent by the attorney appointed to prosecute the proceeding. No answer having been served, petitioner, by order to show cause returnable October 16, 1959 (No. 1204) moved for a final order of disbarment, to which respondent filed an affidavit, sworn to October 30, 1959, in which he stated that he had never received the copy of the amended petition or the copy of the order of June 15, 1959 which petitioner's attorney claimed to have sent to respondent by mail. Thereupon the Clerk of this court was directed to serve upon respondent personally a copy of the amended petition and a copy of the order of June 15, 1959, with a direction that he serve an answer to the amended petition within a stated time. The motion for a final order of disbarment was to be held in abeyance in order to give respondent an opportunity to serve an answer, after personal service on him of a copy of the amended petition. On December 17, 1959 an attache of this court served a copy of the amended petition upon respondent personally together with a certified copy of the order of June 15, 1959 and a letter signed by the Clerk directing respondent to serve his answer to the amended petition on or before December 31, 1959. Respondent did not serve his answer within the time specified and thereafter respondent's time to serve his answer was, upon his request, extended until January 22, 1960. No answer has been received up to the present time. The amended petition charges respondent with professional misconduct, malpractice, fraud, deceit and conduct prejudicial to the administration of justice contrary to section 90 Jud. of the Judiciary Law, in that he (1) commingled with his own funds $500, received by him on or about July 3, 1957, as an escrow or trust fund, and utilized and converted to his own use such escrow or trust fund, even though ultimately he made restitution to the extent of $425, out of his own funds, to his clients, the persons entitled thereto, (2) commingled with his own funds $934, received by him between July 11, 1957 and August 11, 1957, on behalf of his clients, and utilized and converted to his own use those moneys, even though ultimately he made restitution to the extent of $500, out of his own funds, to his clients, and (3) commingled with his own funds $150, received by him on or about May 15, 1957, as an escrow or trust fund, from prospective purchasers of real property owned by his clients, and utilized and converted such escrow or trust fund to his own use, even though ultimately he made restitution, out of his own funds but long after a complaint had been made to the petitioner. Respondent not having answered, the charges contained in the amended petition must be deemed admitted, and the court, after due consideration of such charges, finds them to be so serious as to warrant respondent's disbarment. Respondent is disbarred, and his name is ordered to be struck from the roll of attorneys.