In re Thorn , 149 N.Y.S. 507 ( 1914 )

Ingraham, P. J.:

There were three charges presented against the respondent, on two of which the official referee has found him guilty. The respondent was an attorney at law and was also engaged in certain real estate transactions. His sister, a Mrs. Witte, owned certain real estate in New York of which the respondent had charge. One lot was improved, which was subject to a mortgage of $3,500. Mrs. Witte was pressed for money to pay charges for taxes and interest. The respondent had acted for one Gustav Sinn in procuring for Sinn a second mortgage on improved property in the city of New York. Respondent went to Sinn and said that he had a mortgage for $3,000 on a lot which would pay six per cent interest. Sinn went to look at the lot and agreed to take the mortgage. Subsequently the respondent appeared with the bond and mortgage, received the $3,000 and $30 as a fee to have the mortgage papers nice and good and everything in good order, delivered the bond to Sinn and took the mortgage to have it recorded. It is evident that Sinn relied on respondent to look after his interests and paid him for his services, as he had no other legal advice. The mortgage did not recite that it was subject to a prior mortgage, and there was nothing to indicate to a layman that he was not receiving a first mortgage. Subsequently when the mortgage was due it was not paid, and when Sinn undertook to foreclose it a prior mortgage was discovered. On a sale under the judgment of foreclosure Sinn had to buy the property and there was a large deficiency. Sinn testified that the respondent told him that it was a first mortgage, and relying on that statement he agreed to take it and paid respondent the money. The respondent denied this statement and said he told Sinn that it was a second mortgage. The official referee, after a careful examination, found that respondent’s testimony was false and that respondent was guilty.

A careful examination of the testimony satisfies us that the referee was right. It is not necessary to add anything to his . careful report. If the respondent had informed Sinn that he was loaning this money on a second mortgage, it is inconceivable that he should have omitted a statement in the mortgage that it was subject to a prior mortgage. He was acting for his sister and seems to have disposed of the money himself.

There was a further charge that when the action to foreclose the mortgage was commenced the respondent, on behalf of his sister, interposed an answer setting np usury, but when the case came on for trial, after a vain attempt to get an adjournment, he allowed a default. That this defense was false, and known to be false, follows if Sinn’s testimony is true; and for the reasons stated in the report the referee believes it, as the whole $3,000 was paid to respondent by Sinn. The referee saw the witnesses. He was impressed with the truth of the testimony of Sinn and his wife, and was satisfied that respondent testified falsely; and with his conclusion we concur, and his report is approved. The respondent has thus added to his original offense by committing perjury before the referee to avoid the consequences of his deceit. It is evident that he is not a proper person to remain a member of the profession, and he is, therefore, disbarred.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Respondent disbarred. Order to be settled on notice.