
    In the Matter of Edmond F. Harding, an Attorney, Respondent.
    First Department,
    July 7, 1910.
    Attorney — disbarment.
    Answer to a petition to disbar an attorney for making false statements in an affidavit examined, and held, to show that the statements were true when made and to explain satisfactorily the attorney’s conduct. ■ ■
    Petition of Association of the Bar of the City of New York preferring charges against the respondent.
    
      Einar Chrystie, for the petitioner.
    
      William P. Maloney, for the respondent.
   Laughlin, J.:

Harding is a member of the. firm of Maloney & Harding, who were the attorneys for the plaintiff in Scanlon v. Hodge, an action pending in the Supreme Court, New York county, which was on the calendar on October 25, 1909. Harding verified an affidavit . on October 23, 1909, which was presented to the court- on the call of the calendar on October 25, 1909, by one Slease, an attorney in the office of Maloney & Harding. The object of this affidavit was to have the case passed from day to day or until the return tó New York of an important witness, who -had come to Hew York about ten days prior to October 25, 1909, for the purpose of testifying but had been called back to Chicago and was not in Hew York on October twenty-fifth. The affidavit states “ as an additional rea-' son” for the request that' the. case be passed “ that plaintiff’s attorneys, including deponent, will be actually engaged on Monday, October 25th, at Goshen, Hew York, before Mr. Justice Morschauser in the case of Valentine v. Valentine, set for that day, and' must be there in attendance.”

The part of the affidavit quoted is the basis of this proceeding against Harding. It is claimed that the statement quoted was false and known by him to be false when he verified the affidavit in that no trial or hearing in said case had been set down at Goshen for said day and that if it had it had been duly adjourned.

It appears by the affidavit of Slease that the court at first refused to grant the request that the case be passed and marked, it ready, but that on the second call, when the attorney for defendant was about to take a default, the.court suggested that the attorneys for plaintiff be given a chance to get their witnesses and marked the case passed for the day.

There were two cases entitled Valentine v. Valentine in Westchester county. One was an action for divorce brought by Mrs. Valentine, and the other- was an action by Mr. Valentine against her with respect to certain real estate standing in her name. There was one motion pending to dismiss the action for divorce for failure to prosecute; another made by the husband to have an order vacating an order of discontinuance in the action relating to the real estate vacated and set aside, and another based upon the motion papers in both actions to have one Backus who was attorney for the wife in the action for divorce punished for contempt. The charge against Backus .was that he Was guilty of blackmailing the husband and of fraud in procuring evidence upon which to prosecute the action for divorce. Proceedings were also joending against Backus in the Appellate Division, Second Department, involving the same charges to discipline or disbar him. These three motions were returnable at White Plains on August 21,1909, and came on for hearing at that time before Mr. Justice Morsohauser. Backus consented to the granting of the motion to dismiss the divorce action, but Maloney. refused to accept the consent on the ground that it might prejudice the motion to punish Backus for contempt, which motion was founded upon the motion to dismiss the action for divorce. The pendency of charges against Backus was brought to the attention of the court by him. After some discussion the court set the motions down for a hearing on oral téstimony on the- first Monday in October. The three motions were not heard on the first Monday of October, but were adjourned by stipulation to October twenty-fifth, at a Special Term to be held by Mr. Justice Morsohauser at White Plains, “or to such other place .and hour as Mr. Justice Morsohauser may then be sitting.” On October twenty-second, Maloney & Harding caused notes of issue for the three motions to be mailed to the clerk of Westchester county for the calendar on October twenty-fifth. Uotice to the effect that Mr. Justice Keogh would hold Special Term at White Plains on' October twenty-fifth in place of Mr. Justice Morsohauser appeared in the Law Journal on Saturday, October twenty-third, the day the affidavit complained of ivas made. Respondent’s firm then ascertained that Mr. Justice Morsohauser would be- sitting in Goshen on that day, and after Harding liad made . the affidavit in question — it is charged that this took place before, but there is no evidence sustaining the charge — he called up Backus and told him that Mr. Justice Morsohauser was to hold court at Goshen on Monday, the twenty-fifth, and asked him if he was ready and Backus answered that lie was. On the same day after the conversation over the telephone, with Backus, Tierney, who was counsel for Backus on the motions-, called up Harding and asked for an adjournment to'November twenty-second, and Harding agreed to this provided a written stipulation to that effect were given. Tierney agreed to mail a stipulation that day and said that if it was not received by mail on Monday morning, the twenty-fifth, Harding should assume that Tierney and • Backus would go on with the-motions on Monday. The stipulation was not received on Monday morning, and Harding was prepared' to go to Goshen. This was the situation when Slease was sent up tó the. county court liouse with the affidavit to get the case of Scanlon v. Hodge passed. After the- affidavit complained of had been presented to the court and before starting for Goshen, Harding and Maloney telephoned to inform Backus that inasmuch as the stipulation had not been received they were going to Goshen to move the motions and they were then informed that the stipulation had been mailed that morning, and they did. not go. On the afternoon of Monday, the twenty-fifth, a formal stipulation adjourning the motions to November twenty-second was received at the office of Maloney & Harding in a letter dated on that day.

It is contended in support of the charges that prior to October 23, .1909, Mr. Justice Morschadser informed the attorneys that he would not take any evidence or hold any hearing on the motions until after the determination of the proceeding against Backus in the Second Department; that Harding was informed by Backus and by his said counsel on October 23,1909, that they would not be present at Goshen on Monday, the twenty-fifth, for the purpose of attending any hearing on the motions, and that on October 23, 1909, Harding adjourned the motions to November 22, 1909, by agreement with Backus and his counsel. From this it is- claimed that at the time the affidavit complained of was made, Harding knew that Mr. Justice Morschadser Would not -hold any hearing on the motions on October twenty-fifth, and knew that the motions had been adjourned to November 22,1909. At this point it may be observed that the statement of Backus and his counsel that they would not attend the hearings on the motions did not relieve Harding’s firm from attending if the motions were to be kept alive.

The only affidavit submitted to substantiate any of these charges containing any competent evidence is the affidavit of Decker, the special deputy clerk of the court, who was present on August 21, 1909, when the motions first came on for a hearing before Mr. Justice Morschadser. He states that Mr. Justice Morschadser announced at that time that he would not act on the motions until after, the final determination of the proceeding in the Second Department involving the same matters. He further states that his affidavit is made with the knowledge of Mr. Justice Morschadser and by his direction and after discussing the matter with Mr. Justice Morschadser “ who stated that the matters as therein recited are in accord with his recollection of them.”

In reply to the affidavit of Decker, both Maloney and Harding make affidavits to the effect that on said twenty-first day of August, Mr. Justice Morschadser expressly adjourned all of the motions until the first Monday in October, and directed that the witnesses be then presented before him for examination in open court, and in addition to the fact-that the motions did not involve the same'questions, one being for contempt and the other to have Backus disciplined or disbarred and to the formal stipulation of the attorneys for, the parties adjourning the motions from time to time, and to the fact that one. of the motions was actually heard without waiting for the determination of the proceeding pending before the Appellate Division in the Second Department, and then the others- yrere .adjourned to a fixed time by the court which show that the special deputy clerk is mistaken in his recollection with respect to what occurred on August twenty-first, several affidavits are. presented showing, that Mr. Justice Morsohauser not only refused to make an ■affidavit to be used in this proceeding, but stated that he - had no recollection of what occurred on said day. Furthermore, Backus in his answer to the proceeding against him in the Appellate Division in the Second Department, verified October 16,1909", states that the motion to punish, him for' contempt was then pending and undetermined before Mr. Justice Morsohauser a and the argument thereof is set for October 25th, 1909.” It appears that on the adjourned day of the motions, November 22, 1909, the' motion to vacate the order vacating the discontinuance of the real estate action was disposed of in favor of' the client of the respondent’s firm. The other two motions were' then adjourned by the court until the first Monday in January,1910, and in the meantime Backus procured an ex farte order further adjourning them until the'final determination of the proceedings against him in the Second Depart- ' ment. This clearly shows that neither the court nor the attorneys understood that these motions had been held on August twenty-first until the final determination of the proceeding in the Appellate Division in the Second Department. At the time the affidavits, herein were made a referee had been" appointed in the proceeding against: Backus in the Second Department, and evidence had been taken, but the report of the referee had not been made.-

1 . The petition is by the secretary of the Bar Association and is on information and belief, based on the affidavits of Attorneys Chrystie and Montgomery. Montgomery was the attorney for the defendant in the action in which the respondent’s firm represented plaintiff, which was passed on October twenty-fifth on account of the absence of the witness. The witness appeared and the case was tried the next day, and resulted in a judgment for upwards of $20,000 in favor of the plaintiff. A warrant of attachment having been .issued the judgment was speedily enforced.. After this Montgomery, the attorney for the defeated party, made the complaint against the respondent. It is manifest that the case was not held on account of the engagement of respondent’s firm at Goshen, but to enable his client to procure the attendance of his foreign witness. It appears that the court, when the affidavit was presented, would not hear an oral statement which the representative of the respondent’s firm endeavored to make. Had that been permitted, it is quite likely that the court would have been informed with respect to the negotiations for ,an adjournment of the hearings in the Valentine case. There is no competent evidence of any misconduct on the part of the respondent, and no fact is stated inconsistent with the truth of his affidavit or his entire innocence of any intent to deceive the court. Ghrystie’s affidavit is merely a formal complaint as the representative of the Association of the Bar on information and belief, based on the proceedings before the grievance committee of the association, which are not set forth, and statements made to him by Tierney, not under oath; but if these statements were made positively,. they are fully explained away by the formal stipulations showing that the motions were, set down for that time and were kept alive by formal adjournment and by the opposing affidavits. Montgomery merely states that the respondent’s affidavit was read on the motion to have the case passed for the day, which is not disputed, excepting that it is claimed in behalf of respondent that the application .was to have the case passed from day to day until the witnesses arrived, which is not very material, since they arrived next day.

In my opinion, therefore, there is no necessity for a reference, and the application should be dismissed.

Clarke and Miller, JJ., concurred.

Soott, J.:

I agree that the petition in this proceeding should be dismissed since the respondent has apparently successfully explained what, without such an explanation, appeared to be" a clear case of professional misconduct. I am not willing to do so, however, without referring with disapprobation to the . unfounded, irrelevant and scandalous charges made by respondent against the attorney. who presented the charges in behalf pf the Association of the Bar. That gentleman lias rendered valuable services to the public and has been of much aid to this court in its efforts to uphold the standards of the legal profession, and' lie has earned and enjoys the confidence of the court. It is a by-word that' it is the custom of a certain class of practitioners to endeavor to cover the deficiencies in their own casé by resorting to abuse of the opposing counsel. Such a method of conducting a serious judicial proceeding does not commend itself to the court. " .

Ingraham, P. J.,.Clarke and Miller, JJ., concurred.-

Application dismissed. ■ Settle order on notice. .  