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DISBARMENT OF ATTORNEYS,-continued.

by the appellate division of the supreme court, to prosecute all cases for the removal of attorneys.

It is a sufficient compliance with the provisions of the code requiring the delivery to the attorney of a copy of the charges, where the court makes an order requiring the attorney to show cause why he should not be disbarred, and directs service upon him of the affidavits and other papers presented to it, which show what the charges are.

Matter of

an Attorney, 86 N. Y. 563.

Where an attorney has due notice of the proceedings, appears therein, and neither makes objection to the mode of procedure, nor asks for any other, he cannot object, on appeal, that it was not the one he had a right to demand.

Id.

The fact that some of the charges made against an attorney constitute felonies and indictment therefor may follow is no ground for staying the proceedings to disbar until the trial of those charges in a criminal action, where the latter involve professional misconduct. A stay will be granted only where the charges involve a felony or misdemeanor entirely distinct from the party's professional action.

Rochester Bar Association v. Dorthy, 152 N. Y. 596; 46 N. E. 835.

Proceedings for the suspension of attorneys from practice, or disbarment, are not of a criminal nature.

Matter of Burr, 1 Wheeler's Crim. Cases, 503.

Rochester Bar Association v. Dorthy, 152 N. Y. 596; 46 N. E. 835.

Matter of Randel, 158 N. Y. 216; 52 N. E. 1106.

The accused attorney cannot demand a trial by jury as a legal right in these proceedings.

Matter of Burr, 1 Wheeler's Crim. Cases, 503.

Further, the court in Rochester Bar Association v. Dorthy, cited above, in the course of its opinion stated it to be a familiar principle that the proceedings under discussion are not intended for punishment, but to protect the court from the official ministration of persons unfit to practice as attorneys; that such proceedings are not ar. invasion of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, but that the proceedings, when instituted in proper cases, constitute due process of law.

An order of the supreme court, suspending an attorney from practice for a stated period of time, for professional misconduct not committed in the presence of the court, is reviewable upon the facts by the court of appeals. Matter of Eldridge, 82 N. Y. 161.

In Matter of Dunn, 27 App. Div. 371; 84 St. Rep. 163; 50 Supp. 163, in dismissing an unfounded application to disbar, the court said: "If the court had the power, it would be a peculiarly proper case to exercise it for the purpose of punishing the person who has thus abused its process; but

DISBARMENT OF ATTORNEYS,-continued.

the power of the court in this case to punish as for a contempt is so doubtful that we feel constrained not to attempt its exercise."

c. Evidence.

Where the alleged misconduct is denied, the affidavits and other papers upon which the proceedings were instituted are not evidence, but perform merely the office of pleadings.

Matter of Eldridge, 82 N. Y. 161.

In proceedings for disbarment of attorneys or suspension from practice the facts must be established according to common law rules of evidence. Matter of Eldridge, 82 N. Y. 161.

Matter of

an Attorney, 83 N. Y. 164.

Matter of

an Attorney, 86 N. Y. 563.

Such evidence, if the accused chooses, must be delivered in his presence by witnesses subject to cross-examination.

Matter of - an Attorney, 86 N. Y. 563.

There may, however, be a waiver of the right to insist upon the taking of evidence according to the rules of the common law.

Id.

In the absence of consent, the issuance of a commission to take testimony in disbarment proceedings is not authorized under the Code of Civil Procedure.

Matter of

an Attorney, 83 N. Y. 164.

The presumption of the truth of uncontradicted facts given in evidence against an attorney, which must have been known to him, is raised by the failure of such attorney to testify upon the hearing.

Matter of Randel, 158 N. Y. 216; 52 N. E. 1106.

The proceedings are penal and should be sustained by evidence free from serious doubt.

Matter of

an Attorney, 1 Hun, 321.

d. Punishment.

The punishment of an attorney, by suspension or removal from office, for professional misconduct lies in the discretion of the court.

Matter of Valentine, 10 App. Div. 491; 76 St. Rep. 268; 42 Supp. 268.

It is the duty of the court to punish an attorney by disbarment where charges against him of dishonest conduct in his professional character are properly proved.

Matter of Ryan, 143 N. Y. 528; 62 St. Rep. 822; 38 N. E. 963.

The punishment to be inflicted upon an attorney who has been found guilty of any deceit, malpractice, crime or misdemeanor, is largely governed by the facts of the particular case, and rests in the sound discretion of the court, the usual consideration being: Is the character of the offense

DISBARMENT OF ATTORNEYS,-continued.

such as to render the delinquent unfit to remain upon the roll of attorneys or may it be so excused that justice will be done by inflicting a punishment less severe than permanent disbarment?

Matter of Valentine, 10 App. Div. 491; 76 St. Rep. 268; 42 Supp. 268.

Punishment by suspension from practice for three years is properly im posed upon an attorney who prepared and caused to be written out all the answers to interrogatories, which were read off by the witness as so prepared to the commissioner, and who paid such witness money and later requested him to destroy all correspondence and memoranda showing the misconduct mentioned.

Matter of Eldridge, 82 N. Y. 161.

But punishment by disbarment is not warranted for the citation by an attorney to the court of a case as controlling upon the question involved, when the attorney was aware of a subsequent adverse decision which he did not refer to.

Matter of Valentine, 10 App. Div. 491; 76 St. Rep. 268; 42 Supp. 268.

e. Restoration.

Section 67 of the Code of Civil Procedure provides that upon reversal of the conviction of an attorney, or pardon by the president of the United States, or governor of this state, the appellate division shall have power to vacate or modify the order of disbarment.

The fact that an attorney has been pardoned will not entitle him to restoration as a matter of right, though it is usual in such cases for the court to examine the proofs of the alleged innocence in determining whether or not he ought to be restored.

Matter of E. 65 How. 171.

In the case last cited the attorney had been convicted of perjury and subsequently pardoned, but the court not being sufficiently satisfied of his innocence, refused to restore him to office.

The office of attorney and counselor is forfeited by an attorney's conviction and sentence for a crime punishable by imprisonment in the state prison; such forfeiteure is like that of any other office, and is not a temporary suspension.

Matter of Niles, 48 How. 246.

The fact that an attorney who had been indicted, convicted, sentenced and imprisoned for forging the name of a third person to a note which he delivered to a client, was subsequently pardoned, does not affect the right of the court to disbar the attorney in question for the professional misconduct.

Matter of

an Attorney, 86 N. Y. 563.

1899]

Matter of Lyman.

MATTER OF LYMAN.

[160 N. Y. 96; 54 N. E. 577.]

On reargument, post p. 26.

(Court of Appeals, Oct. 3, 1899.)

1. LIQUOR-TAX CERTIFICATE-PROPERTY RIGHTS.

The right to engage in the sale of liquors, granted by a liquor-tax certificate, constitutes a species of property.

2. LIQUOR-TAX CERTIFICATE-REVOCATION.

The right to engage in the sale of liquors, granted by a liquor-tax certificate, cannot be revoked, except for the causes and in the manner prescribed by statute.

NOTE.-REVOCATION OF LIQUOR-TAX CERTIFICATE.

a.-Statutory provision.

b.-Petition and order to show cause.

c.-Material mis-statements.

1. Measurements.

2. Number of dwellings.

3. Uses of buildings.

4. Consents.

5. Discontinuance.

6. Omissions.

d.-Mistake.

e.-Violations.

f.-Construction.

g.-Evidence.

h.-Costs.

i.-Res adjudicata.

a. Statutory provision.

Proceedings for revocation of a liquor-tax certificate are regulated by § 28 of the Liquor Tax Law (Chap. 112, laws of 1896, as amended by Chap. 312, laws of 1897).

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3. LIQUOR-TAX CERTIFICATE-PROTECTION AGAINST FORFEITURE.

The holder of a liquor-tax certificate, granting the right to engage in the sale of liquors, may invoke the general rules of law for the protection of property in any proceedings intended for the forfeiture of such rights.

4. LIQUOR-TAX CERTIFICATE-SALES AT OTHER PLACES-DELEGATION. Where one holding a liquor-tax certificate, allowing him to sell liquor at a designated place, permits another to do business thereunder at such place, the certificate cannot be revoked because such other engages in unlawful sales of liquor at other places.

5. LIQUOR-TAX CERTIFICATE-AREA OF LEGAL SALES.

The respondent was authorized by a liquor-tax certificate to sell liquors "inside Washington Park Baseball Grounds, North side of Third Street, three hundred and fifty feet east of Third Avenue, Brooklyn." There was a bar at the location named, but when games were in progress kegs of beer were placed at different locations on the grounds, from which beer was drawn and sold to spectators. Held, that the sales were lawful, and the certificate should not be revoked.

REVOCATION OF LIQUOR-TAX CERTIFICATE,-continued.

Subdivision 2 of that section provides that any citizen of the state may present a verified petition to the Supreme Court of a specified district for an order revoking and canceling a liquor-tax certificate on the ground (1) that material statements in the application of the holder of such certificate were false or (2) that he was not entitled to receive or is not entitled, on account of any violation of any of the provisions of the law, conviction for which would cause a forfeiture of such certificate, to hold such certificate, or (3) for any other reason. Such petition must state the facts upon which such allegations are based. The section also provides for the issuance of an order to show cause, upon the presenting of such petition to the court and for the hearing of the proof of parties, where issues are joined, on the return day thereof or for a reference to take proofs. A copy of the petition and order must be served upon the holder of the certificate and the officer who issued the same, not less than five days before the return day thereof and the order to show cause cannot be made returnable more than ten days from the granting thereof.

b. Petition and Order to show cause.

The petition for the revocation of a liquor-tax certificate may be made by any citizen of the state. It does not matter whether he is a resident of the district contiguous to that of the property affected, or whether he has any pecuniary interest in it.

Matter of Kessler, 28 Misc. 336; 93 St. Rep. 888; 59 Supp. 888.

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