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In re Pascal

Supreme Court of New York, Appellate Division

November 17, 1911

In the Matter of ISADORE L. PASCAL, an Attorney, Respondent.

CHARGES by the Association of the Bar of the City of New York against the respondent of professional misconduct.

COUNSEL

Einar Chrystie and Charles A. Maas of counsel, for the petitioner.

Philip C. Samuels, for the respondent.

INGRAHAM, P. J.:

The referee was quite right in his decision that the charges embraced in the original and supplemental petitions were both included in the charges against the respondent before the court, and that it was his duty to take the testimony in relation to these charges as consolidated and report that testimony to the court.

There are two charges presented against the respondent: First, with having received a check drawn by one Blair to the order of one Bonynge, a stenographer, being the amount of a bill that Bonynge had presented for his services as a stenographer on the trial of an action in which Blair was the respondent's client, and subsequently having indorsed Bonynge's name to that check and deposited it in his own bank to his individual account and with having appropriated some portion of that check to his own use. Second. That he advised a person for whom he was acting as attorney, who was under indictment on a criminal charge and out on bail to forfeit his bail and not appear in court for trial when ordered. As to both these charges the referee has found the respondent guilty and the testimony clearly justifies his conclusion.

The respondent was attorney for one Blair in an action in the Supreme Court that had been referred to a referee. On that

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reference Bonynge had acted as stenographer; the referee reported in favor of Blair, and Bonynge had presented his bill to the respondent for his services as stenographer, the charge being $721. The respondent took this bill to Blair, stated to him that the bill would have to be paid before the respondent could enter judgment on the referee's report; but that he considered the bill exorbitant. Blair told the respondent to try and get the bill reduced and at the same time directed a clerk in his office to draw a check for the amount of the bill. The clerk asked to whose order the check should be drawn when Blair said that the respondent would tell him, whereupon the respondent gave the bill to the clerk who drew a check to the order of Bonynge for the amount. The respondent took the check and the bill and stopped at Bonynge's office to see if he could obtain a reduction but Bonynge not being in he went to his own office. He says he there for the first time noticed that the check was drawn to the order of Bonynge. He called up Blair, his client, but Blair had left his office. The respondent then had a conversation over the telephone with Blair's nephew. The respondent says he told this nephew that he had a check to the order of Bonynge, that Bonynge had refused to reduce his charges and he did not know what to do with the check, whereupon young Mr. Blair said to put it through his bank and give it back to Mr. Blair from whom he had received it. This young Mr. Blair was called as a witness by the respondent and at first testified positively that the respondent did not say anything about the person to whose order the check was drawn but simply said he had a check for the amount and asked what to do and that he, young Mr. Blair, being in a hurry and about to leave the office told him to put it through his bank or give it back to his uncle, having no interest in it and not thinking anything about it. On further examination he testified that he did have a recollection of the respondent saying something about the check being drawn to the order of Bonynge, but without thinking particularly about what the effect of his advice would be, simply told him to put it in through his bank or give it back to his uncle. On further cross-examination he returned to his first statement saying that he did not know to whose order the check was drawn; but he expressly testified that he

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never directly or by implication advised the respondent to sign Bonynge's name to the check and had no intention of suggesting any such an act.

The respondent had a bank account in the Nassau Bank. It was a very small account and so far as appears during the period in question he never had over a few dollars to his credit. On the afternoon of the day on which he received the check he indorsed it with the name of the payee and then with his own name and took it around to the bank for deposit to his own credit. An inspection of the indorsement shows that he intentionally indorsed Bonynge's name in a disguised handwriting, so that no one looking at the check would for a moment suppose that it was indorsed by the same person who wrote the respondent's name on the back of it. He says that he changed the handwriting in which the name of the payee was written, as he thought he would have trouble to get the bank to accept the check if it was thought he had indorsed Bonynge's name on the check, and he, therefore, made this indorsement with the avowed purpose of deceiving his own bank and inducing the bank to accept it for deposit by simulating the handwriting of another person on the check, so that the bank would not suppose that both names had been written by the same person. When this check was presented to the bank for deposit the receiving teller called the attention of the assistant cashier to the check and its indorsement, and the assistant cashier asked the respondent whether the indorsement on the check was O. K. or correct. This could only refer to the indorsement of the payee, as the bank well knew the indorsement of the respondent, its depositor, and to that inquiry the respondent answered in the affirmative, assuring the bank officials that the indorsement was correct, whereupon the bank accepted the check for deposit and collected it from the bank upon which it was drawn. The respondent drew against the amount thus deposited to some extent, so this account was only good by reason of the deposit of this check from the time it was deposited on the seventh of June down to the nineteenth of June, when the respondent repaid the money to his client.

These facts are mostly conceded by the respondent, his only defense being that he assumed from ...


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