
    In the Matter of the Estate of Robert K. Simington, Deceased.
    Surrogate’s Court, Queens County,
    April 25, 1933.
    
      David M. Wolff, for Peter Krone.
    
      Richard A. Eagle, for the petitioner.
   Hetherington, S.

Petitioner seeks to have respondent held in contempt of court and fined in a sum sufficient to compensate petitioner for damages claimed to have been sustained by the failure to commence an action for the negligent killing of petitioner’s infant son, alleging that respondent held himself out as an attorney at law and undertook recovery of such damages but failed to bring action within the period limited by statute for the commencement of such action.

Petitioner and Ms wife make affidavit as to the conversations and dealings with respondent, setting forth that respondent held Mmself out and represented himself to be an attorney and counselor at law and thereon was retamed, and undertook investigation of the accident wMch caused the death and directed the taking of photographs of the locality where it occurred, thereafter procuring issuance to petitioner of limited letters of admimstration, but that nothing further was done and when charged with neglect, respondent sought to explain it by saying he had turned over the matter to Ms brother who was a lawyer, giving particulars to tMs brother’s stenographer, but that she had failed to do so, and that he regretted the circumstances. Petitioner further alleges that he had on prior occasions commumcated with respondent on legal matters and respondent had always led him to believe that he was a lawyer; that he maintained an office as such and was so Usted in the local telephone directory.

Respondent meets tMs by flat demal; explaimng that he never advised or held commumcation with petitioner on prior occasions as a lawyer; that he knew him fraternally for many years and met him at a fraternal gathering right after the accident and sympatMzed with Mm thereabout and that at petitioner’s request gave him advice, consented to help in an investigation and to see that the case would be taken care of by Ms brother who was a lawyer. That thereafter he had a petition for letters of admimstration prepared in tMs brother’s office and under the brother’s name as attorney procured issuance of such letters, explaimng a change of date in the acknowledgment. That he gave the particulars for preparation of a summons and complaint to Ms brother’s secretary, telhng her that the petitioner would furmsh a transcript of the minutes of the hearing had before the magistrate and that she withheld the particulars from the brother, the lawyer, awaiting such minutes; that petitioner removed to New Jersey and failed to furmsh such minutes or commumcate with respondent for a long time thereafter. He further avers that he has at all times been engaged in the real estate business and never pretended to be or held Mmself out as a lawyer and in tMs he is supported by affidavits of persons connected with Ms brother’s office, wherein he maintained Ms office. He produces photographs of the office door to prove Ms name was thereon as a real estate operator and not a lawyer, and of pages of the telephone directory to show that he was not listed as a lawyer, while Ms brother was, and further avers that on the papers submitted to petitioner and Ms wife for signature, the name of Ms brother appeared as attorney. Thus is accusation met with demal, equally firm.

A proceeding such as this is quasi criminal; if found guilty respondent would be faced with fine and possible imprisonment, hence the accusation must be supported almost in the same degree as in a criminal charge, i. e., beyond reasonable doubt. Certainly if not to that extent, at least proved with reasonable certainty, and I cannot say that the evidence outweighs the denial, hence the motion is denied. Submit order accordingly.  