
    In the Matter of Henry A. Sayer, an Attorney.
    Attorney— discipline — suspension.
    
    Petition to discipline Henry A. Sayer, an attorney, for misconduct.
   Per Curiam:

The respondent, an attorney at law, was employed by one Wolf to bring an action against the receivers of the New York City Rail; road Company for personal injuries. The respondent accepted this employment, and subsequently, with the consent of his.client, settled'the claim for thirty-five dollars, of which twenty-five dollars was to be paid to the client and ten dollars retained by the respondent. He received a cheek for this sum on the 30th of July, 1908, payable to the order of his client or the respondent as attorney, collected that money, and apparently applied it to his own use. His client testified that he called on the respondent several times, but was unable to find him until November 28,1908, four months after the respondent had received the money, when he met the respondent in the hall of the building in which the respondent had .his office, at which time the respondent gave him five dollars on account and an obligation for twenty dollars, payable on demand.' The next payment Wolf was able to obtain from the respondent was two dollars on August 24, 1909. Subsequently and in 1910 the respondent’s mother-in-law paid Wolf the balance in several payments, the last payment being made on August 27, 1910, which appears to have been made after charges had been preferred against the respondent before the grievance committee of the Bar Association. The referee has found that the delay of the respondent in naying over this money received for the account of his client was a gross • neglect of the respondent to fulfill his professional obligation and constituted unprofessional conduct, of which the respondent was guilty. There is no reason to doubt the testimony of the- client that he called repeatedly at the office of the respondent but was unable to find him. At any rate the respondent was in possession of his client’s money and apparently had used it for his own purposes. Of the twenty-five dollars due, the respondent only paid seven dollars, the balance being paid by the respondent’s mother-in-law. The serious misconduct in this case is the appropriation by the respondent of his client’s money instead of paying it over to his client as it was his duty to do. In most of the cases presented to us where attorneys have to be disciplined the trouble arises from the fact that the attorneys lose sight of the distinction between money that belongs to them and money that belongs to then client, to which the attorney has no title and no right to1 appropriate to his own use. When an attorney receives money of his client,to which the client is entitled it is serious misconduct for the attorney to apply such money to his own use, although he subsequently is able to repay his client the amount he has appropriated. It is this misconduct of the respondent which we are unable to overlook; The amount misappropriated is not material. It is the fact of the misappropriation that is material and which requires that we should treat the attempt as_ serious professional misconduct. While, considering the circumstances, we do not feel that we are required to disbar the respondent, we feel that a suspension is necessary, and the period of that suspension is fixed at six months from the date of entry of the order and until he shall be reinstated on application to the court. The referee’s report is, therefore, confirmed and the respondent suspended for six months and -until the further order of this court with leave to apply for reinstatement at the expiration of said six months upon proof that he has actually abstained from practice during that period and has otherwise properly conducted himself. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Respondent suspended as stated in opinion. Order to be settled on notice.  