
    In the Matter of David W. Rockmore, an Attorney, Respondent. Association of the Bar of the City of New York, Petitioner.
    First Department,
    February 19, 1909.
    Attorney and client—disbarment—repayment of funds misappropriated.
    A proceeding to disbar an attorney for converting his client’s money will not be dropped merely because he has repaid the money and the client has withdrawn the charge.
    Such a proceeding cannot be used to enforce the collection of claims against an attorney.
    Application to disbar an attorney.
    
      Eimar Chrystie, for the petitioner.
    
      Lyman L. Settel, for the respondent.
   Per Curiam :

These charges, presented against an attorney by the Association of the Bar of the City of New York, are based upon an affidavit made by one Hartwell Stafford, from which it appears that an action had been commenced against Stafford in the Municipal Court and judgment had been obtained against him by default; that Stafford called upon the respondent, and after stating the facts in relation to that action the respondent advised Stafford that .he had a good defense and that he believed he could open the default and win the cáse. Subsequently the respondent told Stafford that he had succeeded in opening the default, but that it would be necessary to deposit in the hands of the clerk .of the court $128.27, being, the amount of the judgment and costs, and on June fourth Stafford gave the respondent a check for this amount. Subsequently the respondent told Stafford that the amount of the check had been deposited with the clerk of the court and that the case was set down for the sixteenth of June, and Stafford was subsequently informed by the respondent that the case had gone over to September. Two days after this last interview Stafford was served with an order to appear and be examined in supplementary proceedings in the judgment thus obtained in the Municipal Court. He then inquired of the clerk of the court and was told that no money had been deposited. Stafford then saw the respondent who assured him that the money had been deposited; that he (respondent) had deposited it himself; that the order in supplementary proceedings was a mistake and not to bother about it; that the respondent would look after everything and the trial would take place in September. Stafford again went to see the respondent who again assured him that the money was deposited, but Stafford becoming suspicious about it, demanded back the money and said he would look after the case himself. The respondent then gave Stafford a check dated July thirty-first. This check was presented and payment refused. Subsequently the respondent gave Stafford a note dated August first. The respondent made various excuses about not paying the money, but finally, on the third of August, the respondent sent Stafford $100 and two- days after $30 more, leaving unpaid $13.27, which, on the 26th of August, 1908, when- this affidavit was made, had not been paid.

The respondent interposed an answer in which he admits receiving the $128.27 to be deposited with the clerk of the Municipal Court as a condition for opening the default, and alleges that after receiving this money from Stafford and on June 4, 1908, he gave the check to his clerk, one Jacobson, to obtain the cash and deposit the same in the Municipal Court; that the clerk stated to respondent that he had deposited the amount and the clerk then went on his vacation; that he subsequently ascertained that the clerk had cashed the check, had lost $55 and had made no deposit with the clerk. Subsequently the respondent repaid Stafford the amount that he had received from him, and Stafford wrote' a letter that he had been convinced that “ the lapses in the matter under consideration 'were caused by a clerk in Mr. Bockmore’s office, and, therefore, no fault of his, and the full amount of money which was involved in this case has been refunded to me, consequently I request that the charges be withdrawn.” The withdrawal of the charges by the client does not affect these proceedings. It must be understood that proceedings of this character cannot be used to enforce collection of "claims, against an attorney; as well as that the repayment by an attorney of money improperly taken or withheld from a client will not condone the offense on the part of the attorney.- The question depends solely upon whether or not the attorney has been guilty of fraud or other professionalmisconduct, and when once a proceeding has been instituted it is to be proceeded with, irrespective of any settlement or withdrawal of the charges by the complainant. If the responds ent had received a sum of money from his client to deposit with the clerk of- the court and had applied it to his own use, a case would have been made out which would require action. If, however, the money had been actually paid to the respondent’s clerk and the respondent had, in good faith, supposed that it had been actually deposited, the respondent would have been guilty of negligence which would have justified censure.

In order to properly dispose of the proceeding that fact must be determined, and for that purpose an.order of reference is directed.

Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ.

Reference ordered. Settle order on notice.  