Opinion
December 17, 1937.
S.C. Lewis of counsel [ Einar Chrystie, attorney], for the petitioner.
Robert Daru of counsel [ Charles A. Winter with him on the brief; Daru, Hellman Winter, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.
The respondent advised and aided his client in a plan to destroy a second chattel mortgage given by his client in part payment of the purchase price of certain chattels by a fictitious purchase and foreclosure of a first mortgage upon the same property. Pursuant to this plan, respondent's client paid off certain notes outstanding under the prior mortgage and the respondent obtained an assignment thereof to the father-in-law of his client. He subsequently foreclosed the prior mortgage and sold the chattels covered thereby, all without notice to the second mortgagees. The foreclosure and sale were subsequently adjudged invalid upon the ground the prior mortgage had been extinguished by the payment of the debt.
The respondent, in urging that there was a colorable basis for his assumption that the second mortgage could be legally extinguished in the aforesaid manner, overlooks his total lack of good faith in the premises in deliberately attempting to destroy a debt personally incurred by his client. His conduct, to treat it charitably, was at least sharp practice, and as such merits the censure of this court.
Respondent censured.