First Department, October, 1913. [Vol. 158. Hiram Thomas, for the petitioner. Isador Goetz, for the respondent. INGRAHAM, P. J.: The respondent is charged with having misappropriated $250 collected for his clients and also a mortgage for $2,000 assigned to him for collection. The proceeding was referred to one of the official referees who, after a most thorough investigation, has reported that the charges are sustained by the evidence. The report is so full and satisfactory that it is not necessary to restate the facts. The referee had the witness before him and heard the explanation of the respondent. It is established that when the firm of Van Bergen & Co. were found to be in financial difficulties in the fall of 1907 the respondent, who had been their attorney, and one Bronk, who was a member of that firm, undertook to secure what they could for their joint benefit, and the transactions detailed by the referee were put through for that purpose. Bronk was willing to let respondent get all he could, and the payments by respondent to Bronk were to carry out this agreement. It is clear that as to the other partners, the assignment of the Rappaport mortgage mentioned was not intended to vest the ownership in the respondent for his own benefit. That Bronk was willing that respondent should get the mortgage is explained by the fact that respondent was to pay him a proportion of the amount realized. This is shown by the letter of respondent to Bronk inclosing the check for $18 and the letter of respondent to Van Bergen. These letters and the statements made by the respondent to the receiver appointed in the bankruptcy proceeding are inconsistent with his present position. We, therefore, adopt the report of the official referee. The respondent acted with the consent of Bronk, one of his clients, and that, in view of his youth and inexperience, justifies us in not inflicting the full penalty of disbarment; but the respondent was guilty of professional misconduct which cannot be overlooked, and he is, therefore, suspended from practice for one year, and until the further order of this court, with leave to apply for reinstatement at the expiration of said period, upon proof that he has actually abstained from practice App. Div.] Second Department, October, 1913. during that period and has otherwise properly conducted himself. There was also submitted with the motion on the report of the official referee an application to order a rehearing. The respondent obtained from Van Bergen an affidavit which to some extent qualifies his evidence before the referee, but the main facts relied on by the referee are not involved and Van Bergen's explanation as to the method adopted by the respondent in procuring this affidavit rids it of any force. That application is, therefore, denied. MCLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ., concurred. Respondent suspended for one year, with leave to apply for reinstatement at the end of that period as stated in opinion. Motion for rehearing denied. Order to be settled on notice. In the Matter of Supplementary Proceedings: ERNEST B. DENISON, Appellant, v. JACKSON BROS. REALTY COMPANY, Defendant. HOME TRUST COMPANY OF NEW YORK, Respondent. Second Department, October 3, 1913. Supplementary proceedings - examination of third party after appointment of receiver. Although a receiver of the property of a judgment debtor has been appointed and has qualified in proceedings supplementary to execution the court may still grant an order for the examination of a third party as to property in his hands belonging to the judgment debtor. APPEAL by the judgment creditor, plaintiff, Ernest B. Denison, from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Kings on the 21st day of May, 1913, vacating an order theretofore made for the examination of the Home Trust Company of New York by its president as a third party in proceedings supplementary to execution. John T. Delaney, for the appellant. John H. Corwin, for the respondent. RICH, J.: Second Department, October, 1913. [Vol. 158. The plaintiff appeals from an order vacating an order in supplementary proceedings which required the respondent by its president to appear and be examined concerning property in its hands belonging to the judgment debtor. The order from which the appeal is taken was made for the sole reason that a receiver of the judgment debtor had been appointed and had duly qualified. Sorrentino v. Langlois (144 App. Div. 271) was cited by the learned justice at Special Term as authority. The only question presented by this appeal relates to the power of the court to order the examination of a third party after the appointment of a receiver for the judgment debtor. This precise question was presented to this court in Smith v. Cutter (64 App. Div. 412), in which it was held that the appointment of a receiver of a judgment debtor in proceedings supplementary to execution does not prevent the judgment creditor from obtaining an order for the examination of a third party. Mr. Justice SEWELL said: "If an order appointing a receiver terminated the proceeding in which he was appointed it would not prevent the judgment creditor from pursuing another proceeding to examine a third party having property of the judgment debtor." The receiver here was appointed without an examination of any one, and, as said by Judge SMITH in People ex rel. Fitch v. Mead (29 How. Pr. 360), “it cannot be that he [the judgment creditor] loses all right to discover * * after the appointment of such receiver." * It is stated in Smith v. Cutter (supra), and it is the law of this State, "that when an affidavit stating the jurisdictional facts is presented the judgment creditor is entitled to institute a proceeding for the examination against a person who has property of the judgment debtor, independent of the fact that a proceeding for the examination of the judgment debtor is pending or has resulted in the appointment of the receiver." It is the purpose and object of the proceeding to discover property of the judgment debtor, and this purpose would be entirely nullified if a receiver by refusing to institute a proceeding against a third party having property of the debtor in his possession, could successfully contend that his appointment prevented the judgment creditor from availing App. Div.] Second Department, October, 1913. himself of the examination and discovery secured to him by statute. It is contended by the learned counsel for respondent that this court, in the case of Sorrentino v. Langlois (144 App. Div. 271) has overruled Smith v. Cutter (supra), and while it would seem that there is a conflict in the two decisions, there was no such intention. In the Sorrentino case the defendant unsuccessfully moved to vacate an order for the examination of a third party and the reversal was necessary because the moving affidavit did not show that the person to be examined had personal property of the defendant exceeding ten dollars in value or that she was indebted to him in a sum exceeding ten dollars, without reference to the fact that a receiver had been appointed, and this was the real ground for the reversal. True, it was said that an examination of a third party could not be had after the appointment of a receiver, but this must be regarded as obiter. It follows that the order must be reversed. The order should be reversed, without costs, and the proceeding remitted to the Special Term. JENKS, P. J., CARR, STAPLETON and PUTNAM, JJ., concurred. Order reversed, without costs, and proceeding remitted to the Special Term. JOSEPH C. RINTELEN, Respondent, v. ROSE D. SCHAEFER, Individually and as Executrix, etc., of ELIZABETH RINTELEN, Deceased, and Others, Appellants, Impleaded WOODLAWN CEMETERY, Defendant. Second Department, October 3, 1913. with Will-action to set aside probate - evidence not establishing testamentary incapacity or undue influence-burden of proof - restoration of testatrix to sound mind - presumption - evidence - depositions of physician in incompetency proceeding - insanity of relatives conversations with attorney not acting as such. Action to revoke the probate of a will upon the ground that the testatrix lacked testamentary capacity and that the instrument was the result of Second Department, October, 1913. [Vol. 158. restraint and undue influence exercised by the beneficiaries. The testatrix, a woman of business ability, had been declared incompetent, but subsequently was judicially declared to be competent to manage her own affairs and she continued to do so for some years. The will was executed three years after her restoration to sound mind, and two years before her death. She left the bulk of her estate to persons, not relatives, with whom she lived and who had taken care of her. Evidence examined, and held, insufficient to establish lack of mental capacity or undue influence, and that a judgment entered upon a verdict should be reversed and a new trial granted. A plaintiff alleging lack of testamentary capacity or undue influence is under the burden of establishing the same by a fair preponderance of evidence. In an action to revoke the probate of a will upon the grounds aforesaid, the depositions of the physician who examined the testatrix in the proceeding in which she was declared to be incompetent are inadmissible, not being part of the res gestæ. The incompetency of the testatrix at that period not being controverted, the presumption of continuing incompetency was wholly destroyed by the subsequent adjudication of competency. So, too, in said action, it was error to allow a physician to testify that the brother of the testatrix died insane, and the error was not cured although the evidence was subsequently stricken out. Evidence of the insanity of ancestors or other relatives of a person whose sanity is called in question is not admissible except in support of proof of acts or language of an insane character on the part of the individual whose mental capacity is in question. Testimony as to conversations between an attorney at law and a decedent which took place at a time when he was not acting for the decedent in a professional capacity should not be excluded under section 835 of the Code of Civil Procedure. APPEAL by the defendants, Rose D. Schaefer, individually and as executrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of February, 1913, adjudging a certain paper which had been admitted to probate as the last will and testament of Elizabeth Rintelen, deceased, to be not in truth and fact the last will and testament of said deceased. Judgment was rendered on the decision of the court, certain questions having been submitted to the jury. Appeal is also taken from the order entered in said clerk's office on the 8th day of February, 1913, denying defendants' motion for a new trial made upon the minutes. |