
    In the Matter of Frank W. Jackson, an Attorney, Respondent.
    First Department,
    November 3, 1933.
    
      Charles F. Smith, for the motion.
    
      Finar Chrysiie, opposed.
   Finch, P. J.

This is an application by the respondent to have the matter re-referred to the referee in order that the respondent may submit additional testimony bearing on the charges.

One of the serious charges presented against the respondent by means of this proceeding is that he converted money belonging to his client, which was collected by the respondent by way of settlement.

The respondent had a contingent retainer of fifty per cent. The sum of $4,000 was agreed upon by way of settlement. As the railroad was in receivership, the sum of $1,000 was paid by the receiver. The retention of the whole of this amount by the respondent was the basis of the first charge. There is testimony that the respondent was informed that no payment to exceed this amount would be made. The respondent on his part denies the foregoing evidence and argues that he had no reason to believe that this first payment was to be the last, The respondent desires an opportunity to present additional evidence which he has obtained since the close of the hearings, corroborating his denial. Evidence showing that the respondent had reason to believe that a further payment would be made bears directly on the first charge. If more was to be paid, the respondent could keep the amount first received on account of his share. The probabilities favor respondent.

It is obvious that it would much facilitate a settlement on behalf of the railroad if the amount to be received from the receivership could be clouded even to a slight degree. Chalmers testified that the respondent would receive at least twenty-five per cent. Fear-hake was acting in accordance with probabilities when he testified that he said, in answer to how much would be received, God knows.” Fearhake further testified that he had no independent recollection but that he had told all claimants that they would not obtain more than twenty-five per cent and, further, he assumed that that was what he had told this respondent. If Fearhake talked differently to some claimants, the facts are contradicted which Fearhake assumed in basing thereon his conclusion that he must have told respondent that no more than twenty-five per cent would be received. This the respondent flatly denies and wishes to produce newly-discovered evidence tending to show that Fearhake had not told all claimants that they would receive only twenty-five per cent. In fact in some instances the additional evidence would tend to show that Fearhake had left indefinite the amount which claimants would receive on account of settlements.

For the foregoing reason the motion should be granted and the matter re-referred to the referee.

Merrell, Martin and Townley, JJ., concur.

Motion granted.  