In re Zanger

• Decision Date: 15 January 1935
• Citation: 194 N.E. 72,266 N.Y. 165
• Parties: In re ZANGER.
• Court: New York Court of Appeals Court of Appeals

266 N.Y. 165

194 N.E. 72

In re ZANGER.

Court of Appeals of New York.

Jan. 15, 1935.

Disciplinary proceeding instituted by the Association of the Bar of the City of New York against Aaron Zanger, an attorney. From an order of the Appellate Division, First Department, disbarring respondent on report of referee (239 App. Div. 129, 267 N. Y. S. 193), the respondent appeals.

Order reversed, and proceeding dismissed.

O'BRIEN, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Charles H. Tuttle, Edwin L. Garvin, both of New York City, and Thomas E. Kerwin, of New Rochelle, for appellant.

Einar Chrystie and Carleton S. Cooke, both of New York City, for respondent.

LEHMAN, Judge.

The appellant, an attorney, has been charged with professional misconduct:

‘(a) In representing to the court that the person called by him as a witness as above stated was Samuel Levando, the President of S. Levando, Inc., when he knew that such representation was false and that the person so called was in fact Frank J. Feldman.

‘(b) In preparing and submitting to the court an affidavit in opposition to the motion made to correct that endorsement on a precept purporting to be signed and verified by Samuel Levando, the president of S. Levando & Co., when in fact as respondent well knew said affidavit had been signed by Feldman, and attaching to said affidavit an affidavit verified by the respondent containing the statement above referred to.’

The Appellate Division has found him guilty and has ordered his disbarment.

At the hearing, conducted before the referee appointed by the Appellate Division, there was no dispute as to the facts upon which the charges are based. Dispute, if any, is confined to the inferences which may properly be drawn from these facts as to the appellant's motives and purposes. At the outset of the hearing a stipulation was made ‘that the following is a statement of the facts, proceedings and papers herein and that the same may be considered by the referee and the court with the same force and effect as if established by the testimony of witnesses and the introduction of documentary evidence.’ The attorney took the stand as a witness in his own behalf, and testified briefly as to his motives and state of mind in performing the acts set forth in the agreed statement of facts. Then he was subjected to a minute examination by the referee and to cross-examination by the petitioner. With the exception of evidence which establishes, without dispute, the previous good reputation of the appellant, no other testimony was taken.

It thus appears, without dispute, that in May, 1925, the Yona-Varah Realty Corporation leased to S. Levando, Inc., a store and basement in premises 175 West Seventy-Third street, New York City. In May, 1929, the landlord instituted dispossess proceedings against the tenant claiming two months' rent and demanding a money judgment for the same with interest. An answer was interposed on behalf of the tenant by one Frank J. Feldman.

At the trial of this dispossess proceeding the appellant appeared as attorney for the tenant. The disputed question there was whether the rent was unpaid for one or for two months. He called, as the only witness for the tenant, Frank J. Feldman. Feldman gave his name as S. Levando and testified that he was the president of S. Levando, Inc., the tenant who was sued, and that he had paid all the rent due except for one month. At the close of the trial the court, believing this witness, held that there was only one month's rent due.

A few days thereafter a motion was made by the landlord to correct the indorsement on a petition and precept in a previous dispossess proceeding between the same parties. The appellant, as attorney, prepared an affidavit to be submitted by the tenant in opposition to the motion. That affidavit begins with the recital: ‘Samuel Levando, being duly sworn, deposes and says: I am the President of the tenant in this proceeding.’ Feldman signed this affidavit as ‘S. Levando’ and swore to it. The appellant himself made an affidavit in the same proceeding in which he referred to the ‘statement made in the affidavit of the President of the tenant, Mr. Levando.’ Upon learning that Feldman had falsely represented that he was S. Levando, the president of the corporation, though in fact he was at no time such president, the landlord's attorney moved to set aside the final order in the dispossess proceeding and for a new trial. The motion was granted, and upon the new trial the court decided in favor of the landlord upon its claim that two months' rent was unpaid. The ground of the decision was that Feldman's testimony should be rejected because, upon the previous trial, he had testified that he was S. Levando.

An attorney owes to the court absolute good faith. Any intentional deceit practiced by an attorney upon the court is evidence of a moral obtuseness which may unfit him for his high calling. Efficient administration of justice requires that an attorney shall be held to high moral standards of conduct. Disregard of such standards should not be condoned upon the plea that more serious offenses by others are common. The attorney here makes no such plea. He says that there has been no intentional deceit on his part, no act which is morally reprehensible. The referee appointed to hear and report upon the charges was, of course, selected by the Appellate Division because his own reputation as a member of the bar establishes that he understands and lives up to the traditional high standards of his profession. After hearing and examining the appellant, the referee reported that ‘the respondent was guilty at most of a mistake of the head rather than a conscious or malicious mistake of the heart,’ and that the charges should be dismissed. The Appellate Division has decided otherwise. The question before us is whether from the agreed facts an inference may be drawn that the appellant was guilty of such professional misconduct as would constitute a cause for disbarment. Matter of Flannery, 212 N. Y. 610, 106 N. E. 630; Cf. Matter of Schwarz, 231 N. Y. 642 132 N. E. 921.

That question necessarily requires consideration of the knowledge of the appellant that Feldman was in fact not S. Levando, the president of S. Levando, Inc., and the reason why the appellant failed to disclose whatever knowledge he had to the court. The facts established by the stipulation or admissions of the attorney, and which are relevant upon these points, are as follows: Feldman had been a client of the appellant in certain personal matters in the year 1924, and the appellant knew that his name then was Frank J. Feldman. The relation of attorney and client between Feldman and appellant had ceased at least one year before any of the proceedings here in question in which appellant had appeared. The appellant ‘knew that Feldman had conducted his business as and used the name of S. Levando.’ In April, 1928, S. Levando, Inc., was sued by Pelz-Greenstein, Inc., for the purchase price of goods sold and delivered. The summons and complaint were served upon Feldman, though the affidavit of service states that the service had been made upon ‘S. Levando, president of the corporation.’ Feldman filed a verified answer written by himself on a form containing a general denial and signed by him ‘S. Levando, Inc., by S. Levando, President.’Throughout this action Feldman appeared as S. Levando and so executed a stipulation of settlement and an affidavit in which he describes himself as S. Levando, president of S. Levando, Inc. He negotiated the settlement himself under this name with the agents and attorneys for Pelz-Greenstein, Inc., and was known to them as S. Levando. With the proceeding until that point the appellant had no connection, but, after judgment in the action was entered, Feldman asked that the appellant represent him. On a motion made thereafter in the action by the appellant as attorney, he prepared and submitted an affidavit sworn by Feldman as S. Levando, president of Levando, Inc., and ‘Pelz-Greenstein's attorneys referred to the proceedings and dealings had with Mr. Levando, meaning...