
    In the Matter of Irving C. Fox, an Attorney, Respondent.
    First Department,
    May 31, 1912.
    Attorney — proceedings to discipline attorney — claims of client ' against attorney — repayment.
    Proceedings to discipline an attorney for malpractice may not be used as a means of enforcing the claim of a client against him. Hence, the court on finding that the charges against an attorney in such proceeding have not been proved will not require the repayment of money to a client as a condition precedent to the dismissal of a charge of misconduct although the client is clearly entitled to it.
    Charges by the Association of the Bar of the City of New York against the respondent, air attorney at law.
    
      John Neville Boyle, for the petitioner.
    
      George Gordon Battle, for the respondent.
   Per Curiam:

These charges were referred to the official referee who has reported that the charges before him have not been proved by a preponderance of credible evidence and for that reason reports that the charges should be dismissed.

An examination of the evidence discloses that the case was one which depended entirely upon the credibility of the witnesses. While we think the explanation of-the respondent' is not satisfactory we are not disposed to disagree with the referee who has had the witnesses before him and has had a much better opportunity of judging of their credibility, and we, therefore, with one exception, confirm his report.

The learned referee in speaking of the second charge against the respondent recommends that it should he dismissed upon his payment of the sum of forty dollars to Mrs. ICate Q. Johnson who is clearly entitled to it. This court has consistently refused to consider the repayment of moneys that have been misappropriated by an attorney after the commencement of the proceedings against him as in any way affecting the charge. The respondent either fraudulently misappropriated the money, in which case he should be disciplined, or his retaining that sum of money was justified. He admits he received the money for his client and his explanation is that'the money was received during his absence and used for defraying office expenses and the respondent was not told about the receipt of the money on his return or until the charges were preferred against him. The referee has accepted this explanation and the respondent is to be censured for not returning the money as soon as his attention was called to its receipt. The proceedings are not dismissed upon his making that repayment but because of the fact that his explanation was satisfactory to the referee and excused his not repaying the money. These proceedings are never used as a means of enforcing the claim of a client against an attorney and the payment of money after charges are preferred is not of the slightest consequence in determining the question of a respondent’s misconduct.

The report of the referee is approved with the exception of the particular mentioned.

Present — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ.

Referee’s report approved, except as mentioned in opinion. Order to be settled on notice.  