me. I am not overlooking subdivisions 3, 4, 5, and 6 of section 443, providing for personal service of the summons without the state in certain cases without any order at all.

However, as I have pointed out before, the Godfree Case is not an authority in favor of the defendant in this action. It follows that the motion must be denied, but without costs.

Ordered accordingly.

(169 App. Div. 644)

In re HAWES.

(Supreme Court, Appellate Division, First Department. November 5, 1915.)

1. ATTORNEY AND CLIENT

53-DISBARMENT-GRounds.

In disbarment proceedings against an attorney, evidence held to show that respondent was guilty of making a false affidavit as to the service of a citation for the removal of executors, and that suspension from practice was therefore warranted.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 74, 75; Dec. Dig. 53.]

2. ATTORNEY AND CLIENT

42-DISBARMENT-GROUNDS.

That an attorney had made an affidavit in an action for registration of title, wherein he had grossly misstated the value of the property in question for the purpose of obtaining an extra allowance, required suspension from practice.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 54; Dec. Dig.

42.]

3. ATTORNEY AND CLIENT

42-DISBARMENT-GROunds.

In disbarment proceedings against an attorney, evidence that he had sought to have the appellate court pass upon a fictitious controversy, in which he virtually appeared for both sides for the purpose of obtaining an adjudication as to the validity of the Torrens Act (Laws 1908, c. 444), requires suspension from practice.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 54; Dec. Dig. 42.]

Application for disbarment of Gilbert Ray Hawes, an attorney. On the report of the official referee upon charges of professional misconduct. Respondent suspended for one year.

Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, and DOWLING, JJ.

Einar Chrystie, of New York City (Paul Fuller, Jr., of New York City, of counsel), for petitioner.

Eliot Norton, of New York City, for respondent.

PER CURIAM. The respondent has been charged by the Association of the Bar of the City of New York with a number of acts of professional misconduct, as to a majority of which charges the official referee has reported that in his opinion they have been sustained. A careful examination of the evidence and exhibits has convinced us that no other conclusion could have been arrived at.

[1] The first two charges may be conveniently considered together.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

They relate to a false affidavit made by the respondent as to the service of a citation issued out of the Surrogate's Court, and false testimony given before that court in an attempt to justify the affidavit.

The proceeding in which the citation was issued was one instituted by the respondent for the removal of the executors and executrix of Dr. Clark W. Dunlop, deceased, on the grounds of alleged misfeasance and malfeasance in the performance of their executorial duties. Respondent represented his wife and her sister, who were relatives of the decedent and interested in his residuary estate. The executrix of the will was Mrs. Eliza C. Dunlop, the widow of decedent, and it was with reference to the service of the citation upon her that the false affidavit was made. This affidavit was verified on August 18, 1910, and recited that on the 17th day of August, 1910, he had made personal service of the citation upon Eliza C. Dunlop, at her residence in the city of New York, by leaving a copy thereof with a person of suitable age and discretion, pursuant to section 2520 of the Code of Civil Procedure, and that said person promised to deliver said citation to said Eliza C. Dunlop. At that time Mrs. Dunlop lived at No. 112 West Eighty-Sixth street in the city of New York; but her house was closed for the summer, no one residing therein, and she herself was in Europe.

Being later called upon to justify this obviously erroneous affidavit, respondent swore positively and unequivocally that he had served the citation by delivering the same at No. 114 West Eighty-Sixth street to "Mr. William V. P. Roome, a retired lawyer, who had stated to me previously, and repeated the statement that evening, that he represented Mrs. Dunlop, and was her agent, and had been authorized by her to accept service of all papers." The evidence shows in the clearest way that this statement was false in every particular; that respondent had not delivered the citation to Mr. Roome, and that the latter had never been authorized, or stated that he had been authorized, to receive any papers for Mrs. Dunlop. In some way the papers, including the citation, appear to have been deposited in the basement of Mr. Roome's house, for they were afterwards found there among a quantity of mail matter addressed to Mrs. Dunlop; but how they came there, or to whom they were delivered, if delivered to any one, is not explained. All that is made entirely clear is that the respondent's statements as to the service were undoubtedly false.

These statements were made with such deliberation and so specifically that it is impossible to believe that they were inadvertent, and the only conclusion possible is that for some reason the respondent sought to mislead and impose upon the court. What that reason was it is not easy to imagine, because the citation was duly served upon both of the executors, and the respondent could scarcely have hoped to obtain an order by default by making a false affidavit as to the service upon the executrix. The only solution which suggests itself is that he desired to hasten the proceeding, and was unwilling to await Mrs. Dunlop's return from Europe.

[2] Another charge against the respondent, which is admitted, although sought to be explained, involves also the making of a false affi davit in a judicial proceeding.

Respondent has been engaged to some extent in prosecuting actions for the registration of titles to real estate under the so-called Torrens Act. In March, 1912, he had been engaged in such an action affecting a parcel of real property in Brooklyn. On March 9, 1912, the action being in condition for the entry of judgment, the respondent moved for an extra allowance upon an affidavit in which he swore, as to his own knowledge, that the property was worth $50,000, and he asked for an extra allowance based upon that valuation. As matter of fact, as it is now conceded, the utmost value of the property was not more than $2,500 or $3,000. The respondent seeks to excuse and explain this gross misstatement by stating that he had been under a great nervous strain, that the affidavit was prepared in haste, that he had never seen the property and had no personal knowledge of the value thereof, and that he was under the strong impression that some one had told him that the value of the property was as he had stated it. While this statement may serve to explain, it certainly does not excuse, the respondent's reckless mendacity, for, as is justly remarked by the official referee:

"It is just as wrong to assert that a particular statement is true, without knowing whether it is true or false, as to assert a fact, when the affiant knows it to be false."

Again we are struck with the apparent futility of the respondent's act. It seems incredible that he could have believed that the attorneys upon whom the affidavit was to be served would fail to observe the gross overvaluation put upon the property, or would permit respondent's allegation of value to go unchallenged.

[3] A third charge has been dismissed by the official referee, which in our opinion should have been sustained as an instance of professional misconduct. Respondent, for purposes of his own, was extremely desirous of obtaining an adjudication upholding the validity of the socalled Torrens Act for the registration of land titles as to which he had specialized his practice. He arranged with another attorney to present to the Appellate Division in the Second Department a submission of an apparent controversy upon an agreed case involving the validity of the act in question. There can be no doubt under the evidence that the alleged controversy was not a real but a sham one, in which the respondent virtually represented both parties, and actually prepared or assisted in the preparation of both briefs. This was a clear case of professional misconduct, since it sought to "foist upon the court a fictitious controversy, and is to that extent a fraud and imposition upon it." Matter of V., an Attorney, 10 App. Div. 491, 508, 42 N. Y. Supp. 268, 278. The case thus made up was not entertained by the court, apparently because respondent had failed to make the submission in the form prescribed by the Code of Civil Procedure; but that fact in no way lessens his guilt, which lay in the intention and attempt to impose upon

the court.

We have no choice, therefore, but to find the respondent guilty of unprofessional conduct in the matters above referred to. He has been a member of the bar for upwards of 30 years, and presented to the referee, by consent of counsel and in lieu of character evidence, letters from a number of well-known and highly respected judges, lawyers, and busi

ness men stating in effect that they had known and had had dealings with respondent and had not found him to be untruthful or dishonest. Such testimonials have probative value when there is any question upon the evidence as to the guilt of a party accused of misconduct, but do not serve to palliate or excuse proven and intentional wrongdoing.

The respondent appears to be utterly reckless as to the truth, and willing to make false statements under oath, even when his mendacity is certain to be discovered. Such a man in any walk of life is dangerous, and is especially so when he occupies the responsible position of an attorney, upon whose good faith and truthfulness the court is entitled, and often obliged, to rely. While it is true that in the particular cases above discussed no harm seems to have come to any one in consequence of the respondent's acts, yet we cannot allow that circumstance to stand in the way of the performance of the duty which we owe to the profession and the community.

Our conclusion is that the respondent be suspended from practice for one year, with leave to apply for reinstatement at the expiration of that period, upon showing compliance with the conditions to be recited in the order to be entered hereon. Settle order on notice.

(93 Misc. Rep. 49)

BOWERS v. COLUMBIA GARAGE CO. (Supreme Court, Appellate Term, First Department. December 20, 1915.) MASTER AND SERVANT 286-ACTIONS FOR INJURIES-SUFFICIENCY OF EVI

DENCE.

An employé in defendant's garage, while pushing an automobile around after washing it for the purpose of returning it to the place where it belonged, slipped on some kerosene oil poured on the floor by direction of the foreman so that the rear wheels would skid, and was injured. There was evidence that in other garages a turntable or skids were used, by means of which automobiles could be skidded as desired. Held, that evidence of these facts put defendant on its proof, and the dismissal of the complaint was error, as it was defendant's duty to use reasonable care in providing sufficient, safe, and suitable appliances in the prosecution of its work, and if the oil used, because of the absence of appliances like skids or a turntable, created a dangerous condition in the prosecution of the work, defendant was chargeable with negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

Appeal from City Court of New York, Trial Term.

Action by George Bowers against the Columbia Garage Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Argued December term, 1915, before GUY, PAGE, and PHILBIN, JJ.

Jeremiah A. O'Leary, of New York City (James R. Speers and H. Stevenson Whalen, both of New York City, of counsel), for appellant. Phillips, Mahoney & Wagner, of New York City (Jeremiah T. Mahoney and Warren C. Fielding, both of New York City, of counsel). for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

GUY, J. The action is to recover damages for personal injuries. Plaintiff, employed on April 3, 1913, as a washer in defendant's garage, testified that on that date he with other workmen of the defendant washed a large automobile on one of the washstands in that place; that after the machine was washed it became necessary to skid the car around on the washstand, so as to get it back into the space where it belonged; that the workmen were unable to make the car skid, and that the superintendent or foreman instructed one of the men to put some kerosene oil under the rear wheels, so as to make it skid; that in pursuance of said direction about a pint of kerosene oil was then put under the rear wheels, and that plaintiff, standing with his back against one of the rear wheels and his hands on the spokes, tried with the other workmen to push the car over; that the foreman said, "Stick to it; don't stop;" and then, as the car moved, the plaintiff's foot went from underneath him on the oily surface, and his back or shoulder struck the hub of the automobile, and he thus sustained the injuries complained of.

The plaintiff further testified that in other garages where he had worked there was either a turntable or skids used to turn the cars around; that there were no skids in the defendant's garage, and no turntable there; that a "skid," referred to in his testimony, is a small platform about two feet long and six inches wide, with four revolving wheels underneath; and that when an automobile is backed on two of these skids it can be skidded as desired. The plaintiff's testimony was corroborated by that given by two other witnesses. At the close of the plaintiff's case the learned trial justice dismissed the complaint, on the ground that the plaintiff had failed to prove a cause of action. This ruling was erroneous.

It was the duty of the defendant to use reasonable care in providing its workmen for use in its work sufficient, safe, and suitable appliances in the prosecution thereof; and on the record as it stood at the close of the plaintiff's case the question arose whether, in view of the evidence that there were no skids or turntable in the garage, the defendant had performed that duty. It is inferable from the testimony that, if skids or a turntable were provided at the garage, the defendant's superintendent would not have ordered kerosene oil to be thrown under the wheels of the automobile, and if the oil used by the superintendent, because of the absence of appliances like skids or a turntable, created a dangerous condition in the prosecution of the work, the defendant would be chargeable with negligence. Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449; Mosier v. Weil-Haskell Co., 137 App. Div. 547, 121 N. Y. Supp. 946; Heiser v. Cincinnati Abattoir Co., 205 N. Y. 379, 98 N. E. 747. The evidence was sufficient to put the defendant on its proof. The exclusion of the notice of the intent to sue under the statute was also erroneous.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.