
    In the Matter of B__ V_, an Attorney and Counselor at Law.
    
      Attorney — disbarment of—setting up as a defense to a claim'against himself a cause of action already interposed by him on behalf of a client in another action — submitting a fictitious controversy merely to procure the opinion of the court upon a question of law — misstating the facts of the controversy — citing a decision of the General Term construing a will, and failing to refer to a subsequent adverse decision —punishment for misconduct.
    
    The punishment to he inflicted upon an attorney who has been found guilty of any deceit, malpractice, crime or misdemeanor, is largely governed by the facts of the particular case, and rests in the sound discretion of the "court, the usual consideration being : Is the character of the offense such as to render the delinquent unfit to remain upon the roll of attorneys, or may it he so excused that justice will be done by inflicting a punishment less severe than permanent disbarment?
    TJ pon a motion to confirm the report of a referee appointed to take proof upon an application to disbar an attorney, one B_Y_, it appeared that Y_, about the year 1886, brought an action for Mary A. Wood, as administratrix o.f Martin Wood, against Alfred Simonson and Edward T. Schenck, as executors and trustees under the will of Samuel Wood, upon a complaint which separately stated four causes of action, and that subsequently, in December, 1887, the parties entered into an agreement for the settlement of all claims existing between them, which provided, in reference to the action brought by Mary A. Wood, as administratrix against the trustees, that the plaintiff therein should reduce her claim to §5,009, and that she should have judgment therefor.
    
      On December 21, 1887, the terms of the agreement were carried into effect in open court, by the direction of a verdict for Mary A. Wood, as administratrix, for §5,000.
    On November 9,1888, Y_ entered judgment upon the verdict and indorsed upon the complaint, opposite the second and fourth causes of action, the words: “ Complaint amended on this trial by withdrawing this cause of action from consideration.” He procured the entry of a judgment which recited that the plaintiff, upon the trial, had amended her complaint by withdrawing from issue and consideration the second and fourth causes of action. He also indorsed upon the back of the judgment roll the words: “This judgment having been satisfied by the plaintiff, you (the clerk) will please not docket the same.” No notice of the entry of this judgment was given to the defendants or to their attorney, and no copy of the judgment was ever served.
    At the time of the agreement for the settlement there was pending an action brought by Simonson and Schenck, as executors and trustees, against Mary A. Wood individually, in which she had set up as a defense the second cause of action contained in the complaint in her own action as administratrix, alleging that she had assigned the claim, as administratrix, to a person named Stevens, who had subsequently reassigned it to her as an individual.
    This second action brought by Simonson and Schenck, as executors and trustees, against Mary A. Wood, individually, was subsequently discontinued in pursuance of the agreement of settlement.
    On May 2, 1889, an action was brought against Y_ by the executors of Abraham Hewlett to foreclose a mortgage executed on November 7, 1885, by Y-and wife to Simonson and Schenck, as exechtors and trustees of the estate of Wood, to secure the payment of §2,000 which had been assigned by them to Abraham Hewlett about January 81, 1887. In this action Y_ served an answer on December 16, 1890, in which he set up the second cause of action set out in the complaint of Mary A. Wood, as administratrix, against Simonson and Schenck, as executors and trustees, and alleged that he had become the owner and holder of the claim comprised in it by an assignment ' from Mary A. Wood, made prior to the assignment to Abraham Hewlett of the mortgage; and he asserted that this second cause of action constituted an offset ■ in his hands against the mortgage. This action was tried in 1891, without notice to or knowledge on the part of Simonson and Schenck, as trustees, of the nature of the counterclaim of Y_, which was sustained by the court.
    The court subsequently vacated the judgment in so far as it adjudged that the second cause of action, arising out of said annuities due to Martin Wood, constituted an offset to the mortgage, and also struck out the recital, above referred to, and the memorandum of the amendments to the complaint in the judgment roll in the action brought by Mary A. Wood as administratrix.
    
      Held, that the conduct of V,-- in the use of the counterclaim amounted to a fraud and imposition upon the court in that, although he knew that the cause of action arising out of the', annuities due to Martin Wood had, by the stipulation, been merged in the judgment in the action brought by Mary A. Wood, as administratrix, he had attempted subsequently, as assignee thereof, to set up that claim against the assignee of the bond and mortgage which he had given to the estate of Samuel Wood, and that he was guilty of deceit and mal¡Dracticc in his office as an attorney and counselor of the court;
    That it was not a valid answer to this charge that, although he alleged the claim in his answer, proved it upon the trial, procured a decision of the court establishing it, and entered it in his judgment as an established demand and offset against the plaintiff, the judgment provided that certain annuities to which , V_ was entitled constituted a sufficient offset, and that on account thereof the bond and mortgage were fully paid and that the defense, based upon the assigned claim, was unnecessary.
    Another charge of improper conduct made against Y_ consisted in the fact that Jennie E. Wood entered into a written contract with one Nesbitt for the sale of certain property, and that Y_, desiring to obtain the opinion of the court upon the legal questions involved, prepared a submission of the controversy, under section 1279 of the Code of Civil Procedure, upon which a decision was rendered by the General Term in the first department. He appeared to have been the prime mover in the matter, made the briefs for one side and revised and amended the briefs upon the other side, and the court subsequently vacated its decision in the matter upon the ground that the controversy was not of the independent character contemplated by the Code of Civil Procedure. In this statement Y,__ concealed a fact which he knew, to wit: That the appointment of all the trustees under a will had not been revoked by any order of the court.
    
      11eld, that these acts were unprofessional;
    That where an attorney foisted upon the court a fictitious controversy, not arising between real litigants, it was to that extent a fraud and imposition upon the court;
    That it was also improper for him to present to the court an imperfect and partial presentation of the facts, where every fact should have been submitted to the court;
    That this was particularly true in the case of an attorney who was entirely familiar with the issues which arose under the will in question, and who had for years been engaged in active litigations involving its construction.
    It was further charged against Y_that he improperly procured the appointment by a surrogate of Jennie E. Wood as testamentary trustee of the estate of Samuel Wood, deceased. Upon this point it appeared that the petition which he prepared alleged that a codicil of the will of Samuel Wood revoked or modified the appointment made in the will of executors and trustees, and that it superseded one of them, Edward P. Schénck, and that all of the rest of the trustees and executors had either died or been removed from office; when it was true that a decision had been made b.y the General Term to the effect that the codicil to the will had superseded Edward P. Schenck, the last surviving trustee, but it also appeared that an appeal from the General Term decision had heen dismissed by consent of the parties and that a judge of the Supreme Court had subsequently refused to adopt the views of the General Term. Of these facts Y._did not inform the court.
    
      
      Held, that while it was probable that the attorney had not referred the court to the later decision from a fear that his application might be rejected if he did so, yet the surrogate was entitled to adopt the view of the General Term as a correct statement of the law, and that it could not be said that the conduct of the attorney in suppressing, or in failing to inform the court of the existence of, the subsequent adverse decision was a ground for disbarring him.
    The punishment to be imposed upon an attorney for malpractice is in the discretion of the court; and in the case at bar the court considered that justice would be done by suspending the attorney from practice for the period of two years.
    Motion by the petitioner to confirm the report of a referee appointed to take proof and report to the court • with his opinion upon an application to strike the name of B_"V"_ from the roll of attorneys and counselors of the Supreme Court, and to forbid his practicing in any of the courts of this State.
    
      Byron Traver, for the petitioner.
    
      Albert E. Lamb, for the respondent.
   Hatch, J.;

The petition, which forms the basis of this proceeding, was made by Charles Hewlett, a resident of the county of Queens in this State. Four charges of misconduct upon the part of the respondent are set forth in the petition, with particular specifications in connection with each charge. Upon this petition an order was obtained from the General Term of this court requiring the respondent to show cause why his name should not be stricken from the roll of attorneys and counselors of the Supreme Court, and why he should not be debarred from practicing in any of the courts of this State. Upon the return of such order to show cause the defendant filed an answer wherein he denied each of the charges contained in the petition, and in addition thereto alleged matter in explanation of the specific acts with which he was charged, tending to exonerate and show him guiltless of the same. Thereupon the General Term made an order referring the matter to the Hon. George G. Reynolds to take proof upon the matters contained in the issue thus joined, and report to this court with his opinion thereon. This has been done, and the report, with the evidence upon which it is based, is now before us for our determination.

Recognizing the gravity of the charges preferred, the standing of the respondent, the vital interest which he has in any determination which we may reach, and the duty which we owe the court, the members of the profession of the law and the public, we approach the decision of this matter with a sense of grave responsibility and a desire to do exact justice. To this end we have examined with care each document submitted for our inspection, have read carefully every word of the testimony taken upon the hearing before the referee, being not deterred therefrom on account of its volume, or discouraged by the irrelevancy of a great mass of its matter. We are much relieved in our labor, and fortified in the conclusion which we reach, by the evident fairness and ability of the referee in the conduct of the hearing, and the clearness of his report upon the facts. We do not deem it necessary, in the main, to extend the present discussion beyond a consideration of the first charge contained in the petition, and of the evidence offered in connection therewith. The allegation charges the respondent with being guilty of deceit and malpractice while acting as an attorney and counselor at law in the Supreme Court of this State. The particular acts alleged in support of this charge are, in substance, these: About the year 1886, the respondent, as attorney for the plaintiff, brought an action in the Supreme Court in Kings county, wherein Mary A. Wood, as administratrix of the goods, chattels and credits of Martin Wood, deceased, was plaintiff, and Alfred L. Simonson and Edward T. Schenck, as executors and trustees under the last will and testament of Samuel Wood, deceased, were defendants. The amended complaint in the action alleged four separate causes of action, and its prayer for relief demanded judgment in the aggregate sum of $11,000, with interest and costs. For the second cause of action it was alleged, in substance, that, upon the death of Samuel Wood, his estate, both real and personal, came into the hands of the defendants in the action, and remained under the control of them and their survivors at the commencement of the action; that the estate was sufficient to pay in full all debts and bequests mentioned in the will, and to provide the several sums of money which the testator directed his executors to set apart and invest for the purpose of raising certain annuities provided for in the will; that the executors failed to separate and set apart a certain sum from the rest of the estate, and for the purpose of raising a larger sum than could he obtained by putting the same out at legal interest, kept the same invested in rent-paying real property, which yielded an income of at least ten per cent upon the valuation thereof; that by the terms of the will there was payable to Martin Wood the income of the sum of $5,000, each and .every year, from the death of the testator to the death of said Martin ; that no part of said income or legal interest had been paid to Martin Wood, but that the same remained accumulated in the hands of the defendants, and due to the plaintiff in amount to thé sum of $2,490.

This action being at issue was in December, 1887, placed upon the Circuit calendar of Kings county for trial. While the cause was awaiting trial' the parties to the action entered into an agreement of settlement of all claims in litigation between Mary A. Wood and the children of Martin Wood on the one side, and the trustees of the estate of Samuel Wood, being the defendants in the action, upon the other. This agreement was reduced to writing and was executed by the parties thereto. Respecting the action above referred to, it provided : “In the action of Mary A. Wood, administratrix, against the said trustees, the plaintiff is to reduce her claim to the sum of $5,000 and ask for no larger verdict. The defendants are to permit judgment, for plaintiff, of said amount under the direction of the court, and upon said judgment being entered, the said trustees will accept an assignment or satisfaction of the same as the payment of the balance due for said purchase price of the trustees’ interest in 173 Front street, and the said Mary A. Wood agrees that said judgment is not to be enforced in any other way, but is to be satisfied in the manner prescribed herein.” The respondent conducted the negotiations of settlement for the plaintiff, and was fully conversant with the contents of the agreement and with the quoted clause. On December 21, 1887, the respondent, representing the plaintiff in the action, in company with Mr. Ward, the counsel for the defendants, and the defendants appeared in the Circuit Court before Mr. Justice Cullen and stated to such justice the agreement which had been reached. Thereupon a jury was impanelled in the cause. The respondent introduced in evidence plaintiff’s letters of administration, and stated that he stipulated in open court to reduce plaintiff’s claim to the sum of $5,000. Thereupon the justice directed the jury to find a verdict for the plaintiff for that amount, which the jury immediately did without retiring, and thereupon the parties left the court. The verdict thus rendered was in pursuance of the written agreement; there was no modification excepting any part or portion of the causes of action alleged in the complaint from its operation; no suggestion was made to the court of any reservation of any cause of action contained in the complaint, and no amendment of any character was asked for or made. The legal effect, therefore, was to merge all of the demands of the complaint in the judgment, and plaintiff ceased from that time to have any interest in or control over them, nor could any other person make title thereto through her. No judgment was entered upon this verdict until November 9, 1888, at which time the respondent, in making up the judgment roll, indorsed upon the complaint opposite the commencement of the second and fourth causes of action these words : Complaint amended on this trial by withdrawing this cause of action from consideration,” and he procured the clerk to enter judgment therein, which recited: “The plaintiff, upon the said trial, having amended her complaint by withdrawing from issue and consideration the second and fourth causes of action therein contained, and a verdict having been duly rendered in favor of the plaintiff by a jury on the issues remaining for the sum of five thousand dollars.” The respondent also indorsed upon the back of the judgment roll these words : “ This judgment having been satisfied by the plaintiff, you will please not docket the same.” No notice of the entry of this judgment was given to the defendants or their attorney, and no copy of the judgment was ever served, and defendants had no notice of it or of the amendments to the complaint until some considerable time subsequent thereto.

At the date of the agreement for settlement, and at the time when the afore-mentioned verdict was rendered, there was pending an action brought by Simonson and Sclienck, as executors and trustees of the will of Samuel Wood, against Mary A. Wood for the foreclosure of a mortgage held by said estate. In that action an answer was interposed by Mary A. Wood, and among other defenses she set up the said second cause of action contained in the complaint in the action by her as administratrix against the trustees, hereinbefore set out, alleging in said answer that she had prior thereto assigned said claim as administratrix to one Stevens, who shortly thereafter assigned the same to her as an individual, and that plaintiffs, in the last action, were individually indebted to her thereon. This answer was served November 18, 1887. After the execution of the agreement of settlement, and before its provisions had been entirely carried out, the plaintiffs in the last action served a reply therein, but made no allegations respecting the agreement of settlement. This action was the same one for which the said agreement provided, and was subsequently discontinued by the plaintiffs therein in pursuance thereof.

On the 2d day of May, 1889, there was served upon the defendant Y__a summons and complaint in an action brought by Lewis L. Fosdick and Yan Wyck Hewlett, as executors of the last will and testament of Abraham Hewlett, deceased, against B__V_ _and M____Y___, his wife. This action was brought to foreclose a purchase-money mortgage executed by the respondent and his wife on the 7th day of November, 1885, to Schenck and Simonson, as executors and trustees of the estate of Samuel Wood, which secured the payment of $2,000. The mortgage was assigned to Abraham Hewlett about the 31st day of January, 1887, and he having died, the action was brought by his executors. The respondent joined issue in this action, appearing as attorney in his ■own behalf, by the service of an answer about June 1, 1889. This answer contained no reference to the second cause of action alleged in the complaint in the action of Wood v. Simonson in which the verdict was taken by consent. By an amended answer, served December 16, 1890, the identical second cause of action above referred to was set up as a defense, and it was therein alleged that the respondent had become the owner and holder of the said claim and cause of action by assignment from Mary A. Wood prior to the assignment of the mortgage to Hewlett, and that the same constituted an offset in his hands against the mortgage.

The issue thus joined came on for trial before Mr. Justice Bartlett at a Special Term held in the city of Brooklyn on the 5tli day ■of February, 1891, at which time the respondent appeared in person and as attorney for the defendants. Hpon the trial he produced an assignment of said claim from Mary A. Wood to himself. The assignment was without date, but the respondent stated to the court, at the time of its introduction, that it was made in ¡November, 1887. The trial was followed by the preparation of requests to find facts and conclusions of law by the respondent, and the court found, upon his request: “ XY. That subsequent to the said 6th day of ¡March, 1886, the said accrued annuities and claim against the estate of Samuel Wood in the hands of said executors and trustees, was duly assigned and transferred by mesne conveyances to said BY_, who, prior to the alleged assignment of said bond and mortgage to said Abraham Hewlett, was the owner and holder of said claims, amounting to $2,477.22, against the said executors and trustees of Samuel Wood and the estate of the testator in their hands, no ¡Dart of which has ever been paid.”

And as conclusions of law: “ II. That prior to any assignment of said bond and mortgage to plaintiff’s testator, the same ivas offset to the full amount thereof by claims due from the mortgagee to the mortgagor. III. That the defendants are entitled to judgment offsetting against said bond and mortgage an equal amount of the claims due him from, said estate and said executors and trustees of the estate of Samuel Wood, and to a judgment adjudging the said bond is satisfied in full. IY. The said bond be delivered up to the defendants and that record of said mortgage in the clerk’s office be marked satisfied and that judgment be entered accordingly.”

Thereafter, and on April 24,1891, the respondent entered a judgment in the last action which, among other things, provided: “ I. That prior to and upon January 1st, 1887, there was due to the defendant, B_Y_, from the executors of the will of Samuel Wood, and payable out of the assets of the estate of Samuel Wood, deceased, the further sum of $2,477.22, the whole of certain annuities accumulated in the hands of said executors in favor of one Martin Woocl, and assigned to said Y._ __; in all, the sum of $7,614.22.” By subsequent provision the judgment required the surrender to the defendants of the said mortgage and the cancellation of the same of record.

Of this trial, resulting in these findings and judgment, the said trustees had no notice, nor were they aware that the respondent had alleged by way of counterclaim to the mortgage the said cause of action disposed of by virtue of the agreement, nor were they aware of the amendments that had been made to the complaint and of the judgment entered in the action of Wood as administratrix against them, until some time subsequent to the date when these transactions took place. After hearing of these facts they caused a motion to be made in the latter action to vacate the judgment entered therein and to strike out the amendments noted on the margin of the complaint and for other relief. The motion came on before Mr. Justice Cullen, who had presided at the trial, and resulted in an order striking out the recital of the judgment heretofore quoted, and also eliminating the memorandum of the amendments to the complaint, with costs and disbursements of the motion. In other respects the judgment was permitted to stand. A motion was also made before the same justice to vacate and set aside the findings and' judgment in the action of Fosdick and others, as executors, against V_.. This motion the said justice sent to Justice Bartlett for hearing, and the latter made an order striking from the judgment roll in that action the findings of fact numbered 14 and 15, which related to the cause of action heard before Judge Cullen, and by striking from the judgment the words and the further sum of $2,447.22, the whole of certain annuities accumulated in the hands of said executors in favor of one Martin Wood, and assigned to said Y_in ah, the sum of $7,614.22.” In other respects the judgment was permitted to stand.

In many respects there has been a fierce contest upon these facts before the referee, and as respects the agreement which resulted in the verdict rendered by the jury in Wood, as administratrix, against the trustees, the respondent denies under oath that the judgment was to be had upon all the causes of action contained in the complaint, and asserts that he stated in open court that the second and fourth causes of action were withdrawn from consideration and that he made a pencil memorandum upon the complaint to that effect at the time. We are compelled to say that his statements in this regard cannot be credited. They are opposed to the conceded clause, which the agreement of settlement contained, to the testimony of three witnesses, one, at least, Mr. Ward, a disinterested witness and of unimpeachable character, to the record of the proceedings appearing in the minutes of the stenographer of the trial, to the decision of the learned justice who presided at the trial, and who set the alleged amendments aside upon his attention being called thereto, and to the legal effect which followed from the recorded acts upon which the judgment was based. We may, in the conclusion which we have reached, disregard entirely the testimony of Schenck and Simonson, without at all affecting the substantial character of the evidence upon which it is based. We apply the rule that the evidence must he of that substantial character which finds the defendant guilty of the offense charged beyond a reasonable doubt, and have no hesitancy in accepting the finding of the learned referee upon tills charge in the report which he has made, and have no difficulty in finding for it an abundant support in the evidence. It must be regarded, therefore, as established that the respondent willfully made the amendments to the complaint withdrawing the second and fourth causes of action from consideration, and entered in the judgment in the action the false recital that such causes of action had been withdrawn from consideration. These acts were in violation of the agreement, were a fraud upon the court, corrupted its records, and were clearly acts of deceit and malpractice.

There was much testimony given and conflicting statements made before the referee concerning the time when the agreement of settlement was in fact finally executed; hut if we accejit the respondent’s version in that regard it does not relieve him of his culpable act. Whether this agreement was in fact signed by the parties before or after the verdict is not the. essential tiling; the essence of the matter is in what it contained. It is not disputed at any place in this voluminous record that the clause, respecting the particular action, which finally found place in the executed agreement, was any other or different from that agreed upon in the tentative stages of the negotiation, and, therefore, whether the verdict was taken before the execution of the agreement or after, whether it was subject to the right of the defendants to thereafter appear and open the judgment, or was absolute, is all aside of the question which is now presented. If we assume it ivas as the respondent claims, it still remains the fact that the agreement, when made, did contain the clause; that the verdict which was taken was by virtue of it, and that its provisions in this respect were thereafter carried out by the defendants. Consequently the respondent had no right or authority to do the acts which he did do, whether the agreement was in fact executed before or after the verdict was taken.

There appears before us, at this time, an acknowledgment to the agreement which purports to have been taken before the respondent on the 30th day of December, 1887, and is under his hand and seal. There is nothing in the minutes of the testimony showing that this acknowledgment was upon the paper when it was submitted to the referee, although it was then submitted to careful inspection, not only once, but many times. Its appearance is clean and the ink evidently fresh. If it was of vital importance, it would have been discredited as not having been produced before the referee. Its effect is not to change in the slightest degree the facts upon which the conclusion was reached by the referee and cannot change our own.

The respondent asserts that the trustees knew that the cause of action claimed to have been withdrawn was so withdrawn in fact for the reason that they subsequently filed a reply in their foreclosure action against Mary A. Wood. There is nothing in the reply which indicates any knowledge of such alleged withdrawal, nor does the absence of allegation establish, that the trustees in fact knew it, nor do we think that such inference is permissible when taken in connection with the other acts, much less that they assented to it. There was delay in procuring and delivering the release of Carrie M. Wood for which the agreement provided, and for the evident purpose of certainty and protection the reply was served. But, as the agreement was then in process of execution, it would be a remarkable inference, in view of all the other facts, to say that because the fact of the verdict was not alleged in the reply that, therefore, the trustees knew and assented to the subsequent acts of the respondent in what he did. This action was almost immediately settled and discontinued, as provided in the agreement, and the trustees, in view of what had transpired thus far, might well rely upon the appearance that the whole agreement' was in process of execution. Stress is laid upon the fact that Schenck insisted that the words to which bond and mortgage she claims no offset or defense ” should be stated in the agreement, in consequence of which it is claimed he knew that the second cause of action was alive and still had vitality.

It was provided by the agreement of settlement that Mary A. Wood should, on demand, execute and deliver a release of all demands which she had both as administratrix and personally. In the action brought by the trustees to foreclose the mortgage, she had set up by way of defense the same canse of action as was secondly alleged in the complaint in the action which the verdict was taken. It was undoubtedly wise to have the clause in the agreement, in view of the fact that she in one action claimed to recover as administratrix and in another to hold the same claim individually. The words did not imply that there was any validity in the claim which she had alleged as a defense, and as to those claims she had already agreed to execute releases, and as to the claim as administratrix, she had merged that in her verdict. The "words, therefore, did not imply a recognition of any particular claim which she held, but were designed to protect the bond and mortgage against any claim. If, however, we could imply that the words quoted were aimed directly at this claim, it in no wise affected what transpired upon the trial when the verdict was taken. Ror does what the respondent says was done place him in any better attitude. These words implied that if Mrs. Wood held any existing defense to the bond and mortgage, it should be wiped out. It did not mean that she should divest herself of any claim which she had, for the prarpose of keeping it alive, in order that she might secure its benefits in another action, or subsequently acquire the same to hold as an existing offset to the mortgage. Good faith required a release to the trustees of all claims which she held, not that they should be kept alive by transfer and subsequently reasserted either in her own or others’ hands. Ho one could understand this condition with any more clearness than did the respondent. Yet, in the face of this knowledge, he procured an assignment of this claim to himself, after which, as he claims, she executed the agreement. This was a fraud upon the trustees and was in violation of the agreement. Ho title to the claim passed by virtue of that transaction, and it became void in the hands of the respondent as against the trustees. This claim furnishes no answer to the other facts proved in the case, nor does it aid to establish that the trustees knew or consented that the causes of action in question should be withdrawn when the verdict was rendered.

We now come to a consideration of the subsequent acts by which the respondent enforced this claim as an offset. They are without practical dispute. We think the connection between the two actions and the defendant’s attitude thereto, followed by what he did, prompted him to make the entries in the complaint in the action in which the verdict was rendered, and enter the judgment for the purpose of removing any legal obstacle which might be interposed in the way of his contemplated use of this claim, of which he had possessed himself, as an offset to the mortgage held against him. When he asserted this claim in his answer he was by no means assured, nor could he be, that his counterclaim of the quarter interest due to annuitants to which he was entitled would be allowed in full. That offset was subject to all the vicissitudes which attend upon a litigated action where claims are disputed. This claim added to his strength for a successful defense; he, therefore, alleged it. When he came to the trial he presented it, proved it, had it allowed and entered it in his judgment. The respondent then knew two things: First, that this claim had been merged in a verdict which he had obtained and no longer existed as a subsisting claim ; second, he knew that if not so merged it was void in his hands, as he had no right to take an assignment of it at the time when he says he did from Mary A. Wood. Her agreement, of which he had knowledge, required its cancellation; it could not have vitality thereafter in his hands. The respondent’s use, therefore, of the claim in the manner which he did, and under the circumstances coupled with his knowledge, constituted a fraud and imposition upon the court and made him guilty of deceit and malpractice in his office as an attorney and counselor of this court. It is said in his defense that all this was harmless for the reason that, although he proved the claim, it was not claimed by the respondent as an offset to the amount due on the bond and mortgage. It is true that a clause of the judgment entered in the action provides that the annuities to which the respondent, was entitled were an offset to the full amount of the bond and mortgage, and that on account thereof the bond and mortgage was paid and satisfied. But we fail to perceive how the respondent is relieved from the effects of his acts by this circumstance. He alleged the claim in his answer, proved it upon the trial, procured a decision of the court establishing it, and entered it in his judgment as an established demand and an offset against plaintiff. Allowing full force to this excuse, it amounts to no more than saying that he established more of a defense than was necessary to defeat the bond and mortgage. The vice of the transaction was in establishing what the respondent knew was an invalid claim, as a defense to a cause of action, and procuring a determination by the court that it was a valid and subsisting claim against the cause of action sought to be enforced. The claim made that it was needless for him to do it cannot now avail to remove the sting of the transaction found in what he did. Hor is the respondent aided by admitting that the recital in the judgment that he held the claim prior to January 1, 1887, was a mistake. The imposition upon the court was 'as complete, whether title was obtained in November or January. In fact, the mortgage was assigned to Hewlett about January 31,1887. In order that the claim might be used as a defense to the action it became essential to show that the respondent became the owner of it before the assignment; consequently, we find it alleged in the answer that his ownership was prior to the assignment of the mortgage, and the recital in the judgment simply evidenced what was alleged in the answer, although the date was different from that proved upon the trial. The prompt decision of Justices Cullen and Babtlett in wiping out the fraud and imposition when it was called to their attention has the practical force of judicial action in condemnation of the act. The respondent may not now be heard to urge in extenuation that such justices did not at tHe time proceed to inflict summary punishment by proceedings in contempt or otherwise. The law does not approve or justify hasty action in such matters for fear that injustice may unwittingly be committed. It awaits the full and thorough examination, the careful and- mature deliberation of its courts, before announcing its conclusions or inflicting its punishments.

It is urged that the respondent consented to the orders which were made correcting the judgments. But such consent was only given after motions had been made which the respondent vigorously resisted, and when the hand of the court rested heavily upon him. The respondent did no voluntary act by which he sought to rectify the ■wrong he had done. Whatever was obtained was extorted from him under legal compulsion. We are not now concerned with the shortcomings of the trustees of the Wood estate, assuming that- they exist. Hor does it relieve the defendant from responsibility for his acts, assuming that they have been guilty of misconduct. Tie may not shield himself from wrongdoing because they also are guilty. Ha is now here to answer for his offenses, not theirs.

We are forced to the conclusion that the first charge contained in the petition in this proceeding is established by satisfactory proof and that the respondent is properly found guilty of deceit and malpractice in his oflice as an attorney and counselor of the courts of this State, substantially as alleged in the charge.

The second allegation of the petition charges the respondent, in substance, with having caused to be prepared a fictitious case or submission of an alleged difference between Jennie E. Wood, as administratrix with the will annexed of Samuel Wood against Robert M. Nesbitt. The submission purported to be in compliance with section 1279 of the Code of Civil Procedure. It is further charged that such case was submitted, and that a decision was rendered therein by the General Term of the Supreme Court in the first department, and that subsequent thereto a motion was made by Charles Hewlett, the petitioner representing the next of kin of Abraham Hewlett, deceased, and others, to have the decision of the court rendered therein vacated, and the opinion recalled and expunged from the records of the court, and for other relief. It was admitted that a case was made and submitted to the court for decision, and that the court wrote an opinion therein and rendered a decision thereon (Wood v. Nesbitt, 62 Hun, 445), and that subsequently, upon the motion above referred to, the court vacated the former decision upon the ground that the controversy was not of that independent character which the Code, contemplated, and that, in fact, the respondent was the counsel for both parties. ( Wood v. Nesbitt, 19 N. Y. Supp. 423.)

We do not deem it necessary to enter into an extended discussion of the evidence bearing upon this charge. The referee has found that Jennie E. Wood entered into a written contract with Nesbitt for the sale of certain property; that this contract formed the basis upon which the agreed case was made; that the respondent furnished substantially all of the facts from which the agreed case was made, and that he made the brief for Nesbitt and revised and amended the brief for Jennie E. Wood. The evidence is abundant to that the respondent was the prime mover in all of the proceedings which led to the making of the case. And there is much in the evidence and circumstances surrounding the whole transaction tending to establish that he procured to be executed the agreement between Jennie E. Wood and Nesbitt for the purpose of having submitted to show the court for determination a case so made up as to produce the decision which he desired for other purposes than the determination of a real controversy between the parties. The referee has not passed upon the latter question, but has set out the record facts in. connection therewith. We do not deem it necessary to say that the respondent did in fact set in motion all of the machinery which led up to the proposed case for his own purposes: But it does appear from the evidence in the case, by the finding of the referee, and by the decision of the court, that the case submitted was an imposition upon the court, in that it was not of the independent character contemplated by the Code. This is the most charitable view of which the case Avill permit.

In this connection it will be proper to examine the third charge, as it has reciprocal relations to the second. This charge, in part, is that the respondent made up the submitted case falsely in that lie stated therein that, “ The will in question appointed three executors. The codicil changed the executors by removing two of those originally named and appointed two additional executors. Three of the persons named as executors died. All the others have been removed and their letters testamentary revoked.” That by such statement he concealed from the court what was well known to him, that the appointment of the trustees under the will had not been revoked by any order of the court, excepting that-said Alfred L. Simonson had been removed and - Martin Wood had died, leaving Edward T. Sclienck, who was then living, as sole surA'iving trustee.” The referee found Avith respect to this charge that the case as made up was an imperfect and partial presentation of all the facts Avhich ought to have been submitted to the court; but that upon a consideration of the fact that a copy of the will accompanied the case, and that the will was well known to the courts, and that the decision Avould not bind any one but the parties to the record, he did not feel Avarranted in finding that the respondent intended to conceal material facts from the court in making said case, or that he was guilty of fraud or deception in relation thereto. The petitioner’s counsel argues Avith ability and force that this Avas not a correct Anew of the case and was not Avarranted by the evidence, and much of his argument tends strongly to a conviction that he is -correct. The respondent relies upon the finding of the referee as an exoneration from the charge. Allowing for that certainty of evidence and inference which the law commands in the review of cases of this character, we feel constrained to adopt the conclusion of the referee upon this question.

Upon the two charges, therefore, we have tins result: That the respondent caused a case to he submitted for decision which he knew was not in compliance with law; that the case was an imperfect and partial presentation of all the facts which ought to have been submitted to the court. This is as favorable a view for the respondent as the findings and evidence warranted. Such acts constitute professional misconduct, as it foists upon the court a fictitious controversy, and is to that extent a fraud and imposition upon it. Courts are constituted to decide actual questions existing between parties who are real and who have a real controversy. And the law has carefully hedged about the submission of controversies between parties with such formalities and solemn requirements as will prevent anxious persons from improperly resorting to its aid, and at the same time furnish real litigants an easy mode of invoking its authority. (Code Civ. Proc. §§ 1219, 1280.)

A proper regard for the dignity of the court, a just recognition of its relation to the public, and a proper conception of the office of a lawyer, require a dne observance of these formalities in order that the court may properly discharge its obligations and fulfill its public function. Otherwise the source of its authority is corrupted, and the administration of justice is brought into contumely and disrepute. The submission of anything hut a real controversy has been denominated judicially as a fraud. (Judson v. Flushing Jockey Club, 14 Misc. Rep. 350.) In Lord v. Veazie (8 How. [U. S.] 255) it was said by Chief Justice Tanet : Any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those wlio appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.” When it is apparent, as the referee found, that the case did not truly state the exact facts, the matter is aggravated, and we should be shutting our eyes and stultifying our intelligence if, after reading the record in this case, we did not conclude that the respondent liad a thorough and intimate knowledge of every phase of the questions concerning this Wood estate and of the decisions construing the will. In some of the reported cases in connection with the litigation arising out of the trusts created by the will he has acted as attorney for one of the parties. He had appeared as counsel for the Attorney-General in an action which sought, among other things, to remove from office the testamentary trustees named in the will. (People v. Simonson, 126 N. Y. 299.) He represented many of those who claimed as annuitants ; he had many copies of the will printed and distributed the same; he appeared in and defended actions for the foreclosure of mortgages brought by the trustees or their assigns; he instituted and conducted the proceedings for the removal of the executors; he took title to property conveyed to him by the trustees of the Wood estate appointed under the will, and he proposed to the trustees to buy of them for a syndicate, for which he was to pass title, upwards of $200,000 worth of real property belonging to the estate; he has touched the will at nearly every point where it was possible for a question to arise. The ability and skill of which the respondent is possessed is plainly evident in the submitted record, and we may not, therefore, withhold a fair estimate of what he must have known of the facts in connection with this estate, and of the will by which it was transmitted, when we consider what he has concededly done and what his opportunities for information have heen. We conclude, therefore, that as to tírese charges the respondent was guilty of professional misconduct, and that his act in submitting, or causing to be submitted, the case to the General Term was a fraud and imposition upon the court, and that such fraud was aggravated by his imperfect and partial statement of the facts.

We come now to consider the fourth and last charge, which consists in the fact that the respondent prepared a petition, verified by Jennie E. Wood before him as a notary on the 2d day of August, 1893, which he thereafter presented to the surrogate of the city and county of Hew York, and procured thereby the appointment of said Jennie E. Wood as testamentary trustee of the estate of Samuel Wood, deceased. The petition alleged inter alia “ that hy the codicil of the will of Samuel Wood, deceased, the appointment of Martin "Wood, Alfred L. Simonson and Edward T. Schenck as executors and trustees was revoked and. modified, and Abraham Hewlett, Martin Wood, Alfred L. Simonson and William Elmer were appointed the executors, thereby superseding said Edward T. Schenck; that the said Martin Wood, Abraham Hewlett and William Elmer have long since deceased, and that no one has been appointed in their place ; that on July 30, 1890, Alfred L. Simon-son, then the sole surviving executor and trustee, was removed from his office as such executor and trustee by this court, and his letters testamentary revoked ; that the lawful construction of said will on on said subject is that given in an opinion of the General Term of the Supreme Court, reported in volume 21, Abbott’s Hew Practice (Cases), page 225.” The referee also reports that said petition “ sets forth the fact that Edward T. Schenck, whose appointment as executor and trustee it alleges was revoked by a codicil to said will, ■claimed to hold divers papers and property of the estate, upon the pretense that he was the sole surviving trustee of said estate, and that the petitioner had no rights as testamentary trustee, and while ■claiming that all the valid trust duties under said will belonged to her, it asked that in order to avoid controversy and embarrassment ■she might be appointed testamentary trustee eo nomineIt is claimed and alleged, and proof was received to sustain the claim, that these statements were false and misleading. It became necessary for the respondent, in order to procure the appointment of Jennie E. Wood as a testamentary trustee, to show that the testamentary trustee under the will was dead, a lunatic, had been removed or resigned, and that the trust had not been fully executed, or that the court should be of opinion that the appointment of a successor would be for the benefit of the cestui que trust in a case where one of two or more trustees had died, become a lunatic, been removed or resigned. (Code Civ. Proc. § 2818.)

In order, therefore, to accomplish this result the allegations of the petition were made. The facts appearing before the referee show that in Hovember, 1879, Justice Van Brunt had held at Special Term, in the case of Simonson v. Wood (opinion not reported), that the codicil attached to the will of Samuel Wood did not have the effect of changing the trustees named in the will, in consequence of which Edward T. Schenck was and continued to be a trustee under the will. He, in fact, performed the duties attached to such trust until he was permitted to resign on the 17th day of June, 1893, when the Supreme Court appointed in his place and stead, as sole surviving trustee, the New York Guarantee and Indemnity Company. It also appeared that in the action of Simonson v. Elmer (suprct), after the decision of the General Term, the parties made a settlement which resulted in a dismissal of the appeal therein, and that while that case did hold that the codicil made a change in the executors and trustees of the will by substituting Elmer in the place of Schenck, whereby the latter ceased to have any relation to the will, yet that, in fact, such decision did not have force and effect by reason of subsequent action in dismissing the appeal, and of an existing decision which discredited it. All of which, it is claimed, was well known to the respondent. The evidence established that, about two weeks prior to the presentation of this petition to the surrogate, an action, wherein the Brooklyn Trust Company was plaintiff and Mary A. Wood was defendant, had been tried and a decision rendered therein by Mr. Justice Bartlett. Rival claims of Schenck as trustee, and of Jennie E. Wood as administratrix, came up therein for adjudication. The latter had not then applied to be appointed testamentary trustee eo nomine, but had been appointed administratrix with the will annexed of the estate of Samuel Wood. The respondent appeared as attorney for the defendant and cited the case of Simonson v. Elmer (21 Abb. N. C. 225) in support of his contention therein. Justice Bartlett, in deciding the case, wrote a memorandum opinion refusing to follow this decision, but cited the opinion of Mr. Justice Van Brunt, saying: “I concur in the views expressed by Mr. Justice Van Brunt in reference to the will of Samuel Wood in the case of Simonson v. Wood in his opinion filed in the New York Special Term in November, 1879.” This decision and opinion were not referred to by the respondent when he presented the petition to the surrogate for the appointment of Jennie E. Wood as trustee eo novnine. It certainly was his duty to have informed the surrogate, upon this ex parte application, of what must have been well known to him. He then knew that the decision in the Elmer case had been discredited, and, as we have before had occasion to set out, he knew that Schenck was assuming to act as 'trustee and that he had the support and authority of the court therefor. The decision of Judge Bartlett so recently made must have been clear and fresh in his mind. He sought to avoid the force of this by testifying that he did not know of the decision by Justice Van Brunt, and cited a conversation had with Mr. Bergen. But the latter not only failed to corroborate him, but contradicted and discredited the statement.

There is much in the testimony which tends to lead the mind h> the conviction, in view of the respondent’s intimate knowledge of the Wood estate and the litigation which had been had, that he failed to call the surrogate’s attention to the later decision for the reason that so doing might result in the rejection of the application. By withholding information of this character the surrogate was easily induced to adopt the decision in the Elmer case and his former determination based thereon, as the law. The claim that the respondent sought the appointment of Jennie E. Wood under the authority of the Code, and that it was beneficial to the cestui que trust cannot 'be sustained for the reason that no such claim was made in the petition, nor was the surrogate’s order based upon any such consideration. Ho one, we think, can read this record with unpartisan bias and not receive a strong impression approaching dangerously near to a conviction that there existed a design, in the matters which furnish the basis for the last three charges, upon the part of the respondent to procure the decision upon the submitted case and the appointment of Jennie E. Wood as a testamentary trustee for improper purposes. It is not now necessary to set out how disaster could be worked and settled ■ titles disturbed by such means. But we are mindful that the decision in the Ebner case, as reported, apparently carried with it all the force of a judicial opinion given by an able court, and that the surrogate had the authority to adopt it as his view of the law ; we may not, therefore, in justice disregard this fact in construing the act and motive which actuated the respondent in making use of it.

We have set out in the foregoing discussion the evidence and inference which the record contains respecting the fourth charge. Weighing it all under the rule which we have heretofore annmmced,. there still remains the doubt, created by the Elmer case, that the respondent understood that the law existed as it is therein reported. This doubt has a basis for its foundation, and is, therefore, a reasonable one of which the respondent is entitled to the benefit. Adopting, therefore, this construction of the evidence, we must hold that the respondent stands exonerated of the matters and things charged therein.

As to the other charges we are convinced that the report of the referee is abundantly supported by evidence, and that in the main, as is herein set forth, the charges have been sustained by proof. It remains to be seen what punishment shall be meted out as adequate for the offenses established. Section 67 of the Code of Civil Procedure provides that an attorney and counselor of the courts of record of this State who is guilty of any deceit, malpractice, crime or misdemeanor may be suspended or removed from office. In arriving at the punishment whicli should be imposed each case must be largely governed by its particular facts and rests in the sound discretion of the court [Matter of Eldridge, 82 N. Y. 161), the usual consideration -being, where the charge is established, is the character of the offense such as to render the respondent unfit to longer remain upon the roll of attorneys and counselors of the courts of the State, or may it be so excused that a punishment less severe than permanent disbarment will adequately meet the exigencies of the case ? After a careful consideration of the evidence, the character of the offenses of which the respondent is guilty, and the punishment which attaches, even though no penalty be added to his conviction, lead us to the conclusion that justice will be fairly attained by suspending the respondent from practice as an attorney and counselor at law in the courts of this State for the period of two years.

All concurred, except Bradley, J., not sitting.

The referee’s report confirmed and the respondent adjudged guilty of deceit and malpractice in his office as an attorney and counselor at law and suspended from practice for the term of two years from this date. The expenses of the proceeding must be paid by the county treasurer of the county of Kings upon the certificate of the presiding justice of this court before whom they must be taxed.  