People v. Alfani

• Court: New York Court of Appeals
• Writing for the Court: CRANE
• Citation: 125 N.E. 671,227 N.Y. 334
• Parties: PEOPLE v. ALFANI.
• Decision Date: 09 December 1919

227 N.Y. 334
125 N.E. 671

PEOPLE
v.
ALFANI.

Court of Appeals of New York.

Dec. 9, 1919.

Henry Alfani was convicted of practicing as an attorney at law without a license, and from a judgment of the Appellate Division (186 App. Div. 468,174 N. Y. Supp. 527), reversing judgment of conviction, the People, by permission of the Appellate Division, appeal.

Judgment of Appellate Division, reversed, and judgment of Special Sessions affirmed.

Hogan and McLaughlin, JJ., dissenting.

[125 N.E. 672]

[227 N.Y. 335]Appeal from Supreme Court, Appellate Division, Second department.
Harry E. Lewis, Dist. Atty., of Brooklyn (Harry G. Anderson and Ralph E. Hemstreet, both of Brooklyn, of counsel), for the People.

Peter P. Smith, of Brooklyn, for respondent.

CRANE, J.

The defendant was convicted by the Special Sessions of the city of New York, borough of Brooklyn, of violating section 270 of the Penal Law (Consol. Laws, c. 40). He was not an attorney and counselor at law, but had for a long period of time drawn legal papers and instruments for hire and [227 N.Y. 336]held himself out to the public as being in that business. His conviction was reversed by the Appellate Division on the ground that such acts did not constitute practicing law, and therefore were in no wise contrary to the statute.

The question is fairly presented whether the things done by Alfani are open to the public generally, or require a license from the state before a person can perform them for compensation and as an occupation. Henry Alfani had lived at 475 Park Avenue, Brooklyn, New York, since 1888. In the basement he had an office in which he carried on a real estate and insurance business. Distinct from such work he also drew legal papers, contracts for real estate, deeds, mortgages, bills of sale, and wills. A large sign placed over his dining room or basement window bore the words in big letters ‘Notary Public-Redaction of All Legal Papers.’ The defendant said ‘redaction’ meant the drawing of legal papers. He was 60 years of age, and evidently an Italian, as he testified in part through the Italian interpreter.

On December 27, 1917, two investigatiors of the State Industrial Commission called on Alfani at his office and asked him to look after a matter for them. Gallo, one of the men, said his name was George Lecas, and that he lived at 23 Cook street, Brooklyn, where he had a soda water stand, which together with a stock of cigars, cigarettes, candies, and malted milk, he had sold to the other man, whom he introduced as Geannelis. The terms of the sale were these: The purchaser agreed to assume the seller's contract to pay $5 twice a month to the American Siphon Company, from which the fountain had been obtained, $65 being still due thereon; the stock was to be $26 cash, and the good will $145, to be paid for by Geannelis-$50 that night, $50 January 15th, and $45 January 31st. The last payment was to be extended 10 days if the purchaser was unable to meet it on time. The defendant advised that a bill of sale be drawn, and that the purchaser give back a chattel mortgage. He explained about the [227 N.Y. 337]necessity of filing the mortgage in the county clerk's office and the foreclosure by a city marshal in case of nonpayment. The papers were drawn and executed, for which the defendant charged and received $4. Before leaving Gallo said, ‘In case I have any trouble of any kind, and I need any legal advice, can I come back to you?’ to which Alfani replied, ‘Yes.’

By section 270 of the Penal Law it is a misdemeanor for any natural person ‘to make it a business to practice as an attorney at law, * * * or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, * * * without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state.’ To practice or to represent as being entitled to practice law in any manner is prohibited to those not lawyers.

[1][2] The Appellate Division was of the opinion that this section related only to practice connected with court or legal proceedings. The restriction is broader than this, for effect must be given to the words ‘or in any other manner.’ The words ‘as aforesaid’ have reference to practice in the courts mentioned, and the following, ‘or in any other manner,’ refer to the practice as an attorney at law out of court and not in legal proceedings. Practicing as an attorney at law in or out of court, or holding oneself out as entitled to so practice, is the offense. Not only is this the natural reading of the section, but the lower court in a previous decision held that practicing law was not confined to court work.

In

[125 N.E. 673]

Matter of Duncan, 83 S. C. 186, 189, 65 S. E. 210, 211,24 L. R. A. (N. S.) 750,18 Ann. Cas. 657, it is said:

‘It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions [227 N.Y. 338]and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law.’

Thornton on Attorneys at Law, in section 69, defines the practice of law in the same terms.

In Eley v. Miller, 7 Ind. App. 529, 535, 34 N. E. 836, 837, the court stated:

‘As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’

To the same effect are Barr v. Cardell, 173 Iowa, 18, at page 31, 155 N. W. 312, and Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621. See, also, People v. Schreiber, 250 Ill. 345, 95 N. E. 189;People v. Taylor, 56 Colo. 441, 138 Pac. 762.

To make it a business to practice as an attorney at law, not being a lawyer, is the crime. Therefore to prepare as a business legal instruments and contracts by which legal rights are secured, and to hold oneself out as entitled to draw and prepare such as a business, is a violation of the law.

[3][4] It does not lead us to a conclusion to investigate the powers of...