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In re Mendelsohn

Supreme Court of New York, Appellate Division

May 17, 1912

In the Matter of HERMAN S. MENDELSOHN, an Attorney, Respondent.

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

COUNSEL

Page 446

Lorenzo D. Armstrong, for the petitioner.

William M. K. Olcott, for the respondent.

INGRAHAM, P. J.:

The Association of the Bar of the City of New York has preferred two specific charges against the respondent. The first is that the respondent is guilty of fraud and deceit in aiding and abetting his father-in-law, who had instituted an action against the receivers of the Metropolitan Street Railroad Company for injuries caused by the negligence of the company, in the commission of perjury on the trial in the City Court in such action on May 16, 1910; and, second, that the respondent was guilty of fraud and deceit in commencing an action against the president of the Adams Express Company for personal injuries caused to one Rosa Vavosa without authority on her part, and in claiming to have received a retainer from her and authority to commence such action. The referee appointed to investigate these charges has reported that the respondent was guilty under the first charge, but that as to the second charge the petitioner had not sustained the burden of proof.

The respondent was married to one Tinie Hyman and resided with his wife's parents at No. 89 Sheriff street in the city of New York, there also residing with them two unmarried sisters of his wife. The respondent was a young man twenty-six years of age and was admitted to practice on the 1st of May, 1907. It does not appear when he was married, but shortly after he was admitted to practice, and in June, 1908, a series of accidents commenced, in which the father-in-law and his family were claimed to have been injured, and for which the respondent on their behalf made claims for compensation. The first accident happened on June 14, 1908, on the Brooklyn Rapid Transit railroad, and the respondent made a claim on behalf of his father-in-law, sisters-in-law and his wife against that company. He described his wife by her maiden name although she was at that time the respondent's wife. He then entered into negotiations with representatives of the railroad company and finally received from them the sum of $100 in settlement of these claims. That money was received on

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the 27th of August, 1908, and the respondent delivered to the representatives of the railroad company general releases from his wife, sisters-in-law and father-in-law and divided the money between himself, as the attorney, his wife and his sisters-in-law. Although his father-in-law claimed to be seriously injured he does not seem to have participated in this division. On the 31st of July, 1908, his father-in-law and his two sisters-in-law were alleged to have been in another railroad accident on the Interborough Rapid Transit railroad and the respondent on their behalf made a claim against that corporation for damages for the injuries that they had sustained. He conducted the negotiations in relation to these claims; the claimants were examined by the representatives of the railroad company which resulted in an offer of settlement by the railroad company of $200, which offer was accepted, and $200 in cash was paid to the respondent who paid $150 to the persons claiming to be injured and deducted $50 for his own services. Then on July 12, 1908, the father-in-law fell down a flight of stairs at his residence, No. 89 Sheriff street. On December 28, 1908, the respondent presented a claim to the landlords on behalf of his father-in-law. The making of that claim resulted in negotiations with the Casualty Company of America, and the respondent at the request of its representative prepared a bill of particulars of the injuries that his father-in-law had received. He alleges that he subsequently sent a letter to the company in which he said that he made a mistake in the description of the injuries. He accounts for this mistake by saying that he must have dictated this description of the injuries that his father-in-law had received from a statement that he had of the injuries caused by the Brooklyn accident and he described the injuries received in the Brooklyn accident on the fourteenth of June. The casualty company denied ever having received the corrected letter. The negotiations to recover for the injuries resulting from the stairway accident continued and finally were settled on March twelfth for $60, on which day his father-in-law executed a general release, and of that sum respondent paid $50 to his mother-in-law and kept $10 for his own services. From this it appeared that within a little over a month the father-in-law and his family suffered from three accidents for which they

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had recovered three separate claims, that the respondent had represented his wife's family in the making of these claims and settlements and had received the money actually paid to release the claims. In December the father-in-law had a fourth accident on the Delancey street horse car line resulting from the car starting as he was boarding it. Subsequently and in February, 1909, the respondent on behalf of his father-in-law commenced an action against Joline and Robinson, as the receivers of the Metropolitan Street Railway Company, to recover damages for the injuries caused by this accident, and this action came on for trial on May 16, 1910, in the City Court. The respondent called as a witness his father-in-law, the plaintiff in the action, and he testified as to the accident and the injuries that he had received. On cross-examination he was examined very fully as to his condition at the time of the accident, and as to whether he had ever been injured in any other accident, or had made claims against any other individual or corporation for personal injuries. He testified positively that he had never been injured but once before by any accident, and that was as the result of a collision on the Ninth avenue railroad line, which was a couple of years before he testified. That testimony was reiterated over and over again. He was asked whether he had ever fallen down the stairs in his own house and presented a claim to the casualty company for personal injuries, and in answer to that question he said he fell down two steps, but was not hurt at all. He was asked whether he made a claim for damages in consequence of that fall, and received money to settle that claim, and that testimony was excluded on the objections of his son-in-law and counsel who was conducting the examination. But he said he made no claim to the casualty company that he was injured, and stated as a fact that he was not injured at all, but only fell down two steps; that he made no claim against the casualty company on account of that injury; presented no claim for that injury through the respondent, his son-in-law; and received no money from the casualty company for that claim. An examination of the testimony of the respondent's father-in-law in that case discloses that he testified falsely, and that the respondent, conducting the trial, heard this testimony of his

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father-in-law and client without attempting in the least to correct it, but allowed the trial to continue without calling his attention to the fact that he was testifying falsely, and yet the respondent, as the attorney for his father-in-law, had made these various claims and conducted the negotiations for their settlement and received the money from the various corporations responsible for the prior accidents. Before that trial was concluded the presiding judge for some reason not disclosed ordered a juror withdrawn, and that trial, therefore, came to an end.

The whole conduct of the respondent was absolutely indefensible, and the excuses that he gave before the referee are entitled to no weight. He says he was so shocked at hearing his father-in-law's testimony, and by the realization of the fact that he was guilty of perjury, that he lost his head and so did not attempt to correct the erroneous testimony that was given for fear if he did that he would subject his father-in-law to a prosecution for perjury. Notwithstanding this mental condition into which he was thrown by the fact that his father-in-law was committing perjury he continued to conduct the trial, continued to object to further questions asked on cross-examination, and endeavored to limit as far as he could his father-in-law's cross-examination. So far as appears by the record he never made the slightest attempt to correct the testimony; never stated to the court that the facts that the witness had sworn to were false; and never did anything to relieve himself from responsibility for the false testimony that was given. This is too flagrant a violation of the duty imposed upon an attorney and counselor at law by his acceptance of the office to be overlooked. If he was willing to sacrifice his professional duty to save his father-in-law from ...


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