265 A.D. 259, In re Application of Sampson

Citation:265 A.D. 259, 38 N.Y.S.2d 589
Party Name:In the Matter of DAVID SAMPSON, Petitioner, v. ERNEST E. COLE, Commissioner of Education of the State of New York, Respondent.
Case Date:December 29, 1942
Court:New York Supreme Court Appelate Division, Third Department
 
FREE EXCERPT

Page 259

265 A.D. 259

38 N.Y.S.2d 589

In the Matter of DAVID SAMPSON, Petitioner,

v.

ERNEST E. COLE, Commissioner of Education of the State of New York, Respondent.

Supreme Court of New York, Third Department.

December 29, 1942

PROCEEDING under article 78 of the Civil Practice Act, transferred to the Appellate Division of the Supreme Court, Third Department, by an order of a Special Term of the Supreme Court, Albany County (SCHIRICK, J.), entered September 27, 1940, to review the determination of the Board of Regents of the University of the State of New York and the Commissioner of Education, dated July 2, 1940, that petitioner had committed gross negligence in the public practice of accountancy, as the result of which his license was suspended for a period of two years.

COUNSEL

Jay Leo Rothschild and Walter S. Beck for petitioner.

John J. Bennett, Jr., Attorney-General (Dorothy U. Smith, of counsel), for respondent.

SCHENCK, J.

The Board of Regents determined petitioner committed gross negligence in the public practice of accountancy and suspended his license to practice as a certified accountant for a period of two years. Petitioner brings this proceeding for review under article 78 of the Civil Practice Act.

Petitioner contends that the evidence was insufficient to sustain the determination of the Regents. He also argues that there is jurisdictional defect in the proceedings for the reason that only two members of the Board of Regents participated in the hearings, though the presence of not less than three members is required by statute. Petitioner further contends that the

Page 260

determination should be set aside on the additional grounds that the Regents' sub-committee failed to issue subpoenas for witnesses named by petitioner, and that the findings served upon petitioner were not the same as those actually made by the Regents.

In brief, petitioner was charged with gross negligence in the issuance of a financial statement of a client with knowledge that the statement would be used to obtain credit from a specified firm. The statement in question represented that petitioner's audit of the books and records of Samseham, Inc. showed a net worth of $98,594.73, whereas the corporation's true condition was an excess of liabilities over assets. Relying upon the favorable statement, a concern known as Bachmann-Emmerich & Co...

To continue reading

FREE SIGN UP