
    In the Matter of Abraham J. Halprin, an Attorney, Respondent.
    First Department,
    May 18, 1934.
    
      Einar Chrystie, for the petitioner.
    
      Charles II. Kelby, for the respondent.
   Finch, P. J.

This is a motion in a disciplinary proceeding by the petitioner that the respondent be adjudged guilty of professional misconduct as charged in the petition.

The facts and the analysis of the facts are correctly set forth in the opinion of the referee, to which reference is made. To set them forth here at length would be but needless repetition.

The referee has reported finding the charges not sustained, but holding that the conduct of the respondent does not conform to the proper standard of professional ethics in so far as he avails himself of the defense of usury.

Where, as here, the transaction was really a loan of money by the complainant to the respondent by an ostensible purchase and sale of notes through a dummy, the holding that the respondent was unethical in setting up the defense of usury is not sustained by the record; at least in the absence of proof that the loan was procured with the then proven intention of evading payment thereof by interposing the defense of usury. (See London v. Toney, 263 N. Y. 439.)

It follows that the proceeding should be dismissed.

Martin, O'Malley, Townley and Glennon, JJ., concur.

Proceeding dismissed.  