ASSAULT.

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Ejection of plaintiff from hotel - ducy to leave premises when requested
right of hotel employee to eject person not guest — amendment at trial
to show which employee committed assault - amendment not introducing
new cause of action — when punitive damages cannot be recovered ·
excessive damage. A person who enters a hotel, not being a guest or
patron thereof, is under the duty to leave the premises when ordered to
do so by the chief house officer and, if he refuses, the officer may use so
much force as is necessary to eject him and is not personally liable in
damages for assault if he uses no excessive force.

Although in an action brought against an incorporated hotel company
and the house officer thereof as codefendants by a person who was
ejected from the premises with an alleged assault, the plaintiff has
alleged that the assault was committed by the house officer, named
defendant, instead of by another employee who was assisting him,
he may be allowed to amend his complaint at trial in this respect as
against the hotel company, which could not be surprised by the amend-
ment. Moreover, such amendment does not introduce a new cause of
action as against the hotel company.

As the plaintiff, by refusing to leave the premises when ordered to do so,
himself provoked his forcible ejection, he cannot recover for the mortifi-
cation and indignity placed upon him or for injuries to his reputation,
for they resulted from his own wrongful resistance. He cannot recover
punitive damages, but merely for the actual physical injury suffered by the
assault.

Evidence examined, and held, that a verdict of $1,000 was excessive and
that a new trial will be granted, unless the plaintiff stipulates to reduce
the recovery to $250. Hill v. Greeley Square Hotel Co., 421.

Liability of electric company for acts of agents.

See PRINCIPAL AND AGENT, 3.

ASSIGNMENT.

Assignment of insurance policy as security — when assignee not liable
for costs.

See COSTS, 1.

Equitable assignment by corporation to its president — action for
moneys received.

See EQUITY, 1.

ATTORNEY AND CLIENT.

1. Deposit of money with attorney for investment — remedy where attor-
ney acts as business agent― summary proceeding does not lie. Where an
attorney at law who had collected moneys in his professional capacity is
requested by his client to hold and invest said moneys, he became a
business agent for the latter purpose and no longer holds the moneys in
his professional capacity. Hence, where he has wasted the moneys by
improper investment the client cannot proceed against him summarily
by motion to compel him to pay over, even though he may be subject
to disciplinary proceedings by the court. The client must enforce her
rights by action. Matter of King, 196.

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2. Petition by client for construction of contract of retainer and for
ascertainment of value of services- when invalidity of contract of
retainer no defense to payment of attorney. Where a client on a motion to
the court alleges that he had agreed with his attorney to pay him fifty per
cent of the amount realized from a certain matter for his services and dis-
bursements; that "he was overreached in the matter;" that the half of
the amount realized was greatly in excess of the value of the services, and
asks among other things that the attorney be required to account and pay
the petitioner the amount found due him "after deducting from the
amount collected * *
a fair and reasonable sum as compensation
for the services and disbursements
* in said matter," and the

*

ATTORNEY AND CLIENT —Continued.

order of reference required the referee to make inquiry as to the legality
of said agreement, ascertain the value of the services rendered by the
attorney and report to the court, and also directed that the attorney pay
over the amount found due "in excess of the amount found reasonably
and properly payable to him," and the referee found that the agreement
was void because it contemplated that advances were to be made by the
attorney to the client, but also found upon the uncontradicted evidence of
reputable attorneys that the services of the attorney were of the reason-
able value of one-half of the amount collected, the finding of the referee
as to the value of the services should be affirmed.

The client, after having been defeated upon the very issue which he pre-
sented to the court as to the value of the services rendered, cannot object
to the payment of the attorney upon the ground of the invalidity of the
contract. Matter of Carney, 201.

3. Attorney at law disbarred fraudulent representations made to
client-conversion of funds belonging to estate compulsory restitution
no defense. An attorney at law disbarred for inducing a client, as admin-
istratrix, to indorse to him a check representing funds of the estate upon
the false representation that the sum had to be deposited in the Surrogate's
Court and for converting the proceeds of the check to his own use.

It seems, that if the client had actually permitted the attorney to keep
the money until the time came for her accounting, it was a violation of
sound professional ethics for the attorney to borrow the money without
giving collateral security or any written evidence of the debt.

The fact that the attorney being threatened with disbarment proceed-
ings repaid a portion of the moneys converted, does not protect him from
disbarment. Matter of Little, 280.

4. Attorney at law disbarred — participating in scheme to procure
divorce for client — making false claim to moneys of client — doctrine of
reasonable doubt not applicable. Attorney at law disbarred for partici-
pating in a scheme in pursuance of which his client was induced to go to a
room in a hotel in an adjoining State with a woman other than his wife,
where he was found by detectives, and as a result of which his wife pro-
cured a divorce, and also for delaying the repayment of money to his client
by setting up a false claim thereto.

The doctrine of reasonable doubt has no place in a proceeding to disci-
pline an attorney at law. The questions involved are to be determined
upon the fair preponderance of the evidence and the reasonable inferences
to be drawn therefrom, and not beyond a reasonable doubt. Matter of
Herrmann, 310.

5. Attorney at law disbarred - receipt of money from estate of which
his wife was executrix-fraud in inducing clients to loan money. An
attorney at law should be disbarred, where it appears that he was very
closely connected in business with his wife; that she in an accounting of
an estate in which she had been made executrix, claimed credit for exces-
sive payments to her husband as attorney and for alleged loans, which were
disallowed by the court; that on appeal from said decree she obtained a
surety bond by inserting in her application material words in a rather
obscure interlineation, which words were overlooked by the surety com-
pany which was compelled to pay, and that said attorney loaned money
belonging to his clients on mortgages represented to them to be first liens,
but which were, in fact, worthless and subject to taxes, and on which he
personally paid the interest, the mortgagors being mere dummies. Mat-
ter of Mulligan, 323.

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6. Attorney at law suspended from practice-false statements to
client unauthorized suit. Attorney at law suspended from practice for
one year for falsely representing to a client that he had already begun an
action when in fact he had merely delivered a summons to a process
server, for beginning an action without authority and for falsely represent-
ing to a prospective client that he had entered judgment in favor of
another client in a suit involving similar matters. Matter of Rahm, 330.

7. Attorney at law censured - advertising legal business. An attorney
at law severely censured for unprofessional conduct in extravagantly adver-
tising his business of making commercial collections contrary to the

spirit of canon 27 of the Code of Ethics. The court determines to take
no further action if the defendant refrains from further use of such
unprofessional methods. Matter of Schwarz, 335.

8. Summary proceeding to compel attorney to pay over — assignment of
judgment to attorney's clerk-duty of attorney. Where, pending an
appeal to the Court of Appeals from a judgment for the plaintiff in a
negligence action, a clerk in the office of the plaintiff's attorney induced
the plaintiff to assign his one-half interest in the judgment for a sum
much less than the value of that interest, the money paid to the plaintiff
being in the greater part furnished by the clerk, the court, on the plain-
tiff's motion, will order a reference to determine whether the plaintiff's
attorney should not be compelled summarily to pay over the client's
share in the recovery notwithstanding the assignment thereof.

The attorney's alleged ignorance of the client's transaction with his law
clerk is no answer to the summary proceeding for, it seems, he should
have made such investigation as would have protected the client against
such improvident assignment. Matter of Driscoll, 375.

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9. Disbarment proceedings — evidence not sustaining charges — alleged
abuse of legal process. Proceeding to remove an attorney at law from
office upon the charge that he purchased a railroad ticket with the pre-
conceived plan and conspiracy to defraud the railroad company by using
the process of the court in a suit against said company, upon the fictitious
and unfounded claim that it had refused to redeem the ticket so as to
become liable for the statutory penalty, and also for committing perjury
on the trial of the action. The charges against the respondent were
sought to be sustained by the testimony of paid detectives to whom he
is alleged to have confessed to the conspiracy. Evidence examined, and
held, insufficient to sustain the charges.

Evidence to sustain charges which will warrant the disbarment of
an attorney at law should be clear, satisfactory and convincing. The
respondent is presumed to be innocent, and proof of his guilt must be
clearly established, and especially so where the charges, if true, constitute
a violation of the criminal law. Matter of·

653.

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10. Negligence of attorney in prosecuting claim — pleading — com-
plaint not stating cause of action. A complaint in an action brought by
a client against her attorney to recover damages for his alleged negligence
in failing to prosecute diligently a claim against a corporation which
subsequently became insolvent does not state a cause of action where it
fails to show that the plaintiff had a cause of action on which the defend-
ant, by diligence, could have recovered a judgment, but merely alleges that
the defendant was retained to recover a specific sum of money "due from
said Company to this plaintiff," that allegation being a mere conclusion
of law.

So, too, an allegation that the plaintiff "might" have recovered judg-
ment in case the defendant had prosecuted the action with due diligence is
a conclusion of law.

In an action against an attorney at law to recover damages for his negli-
gence in failing diligently to prosecute an action the plaintiff must both
allege and prove that but for the negligence of the attorney the claim
could or would have been collected, and the complaint must show facts
establishing a good cause of action against the person against whom the
claim was made. Schmitt v. McMillan, 799.

11. Summary proceeding to compel attorney to pay over-determina-
tion that attorney is entitled to disbursements and fee - interest - costs -
reference. Where a client institutes a summary proceeding to compel his
attorney, who claims a lien upon moneys collected for professional services
rendered, to pay over the same upon the theory that the attorney is not
entitled to any compensation whatever, and it is determined that the
attorney is entitled to retain the amount of his disbursements and a
reasonable counsel fee, which is fixed by the court, so that although
required to pay over a portion of the money he is virtually successful, he
should not be charged with interest or with costs.

The court has power to refer such summary proceeding to an official
referee. Matter of Von Polheim, 819.

ATTORNEY AND CLIENT - Continued.

12. Action against husband to recover for legal services rendered to
wife - pleading. complaint not stating cause of action. A com-
plaint in an action brought by an attorney at law against the hus-
band of his client to charge him with the value of professional
services rendered to the wife while they were living separate and apart
in procuring an adjustment of the wife's claims against her husband
and of their marital differences and which does not show that the
nature of an action brought against the husband was for the protection
and support of the wife or that the husband's conduct made the bring-
ing of the action reasonable and proper, does not state a cause of action
against the husband upon his common-law liability to pay for services
rendered to the wife.

Where the complaint does not show the nature of the action brought
against the husband an allegation that he made a special promise to pay
the attorney for services rendered to the wife in consideration of her
consent to discontinue the action does not state a cause of action as it
discloses no consideration for the special promise. Steuer v. Hart, 829.

13. Unprofessional conduct-employment of disbarred attorney as
interpreter. Proceeding to discipline attorneys at law upon the charge
that they had allowed a disbarred attorney to practice law in their names
and in their offices. Respondents contended that they had merely employed
the disbarred attorney as an interpreter to aid them in dealing with clients
who were unable to speak the English language. It appeared that the
attorneys allowed advertisements in the foreign language to be printed
in which the name of the disbarred attorney appeared as being con-
nected with their office and that they had moved to premises occupied
by the disbarred attorney. Evidence examined, and held, that while
the charge against the respondents was not proved, their conduct called
for the disapproval of the court. Matter of Treadwell, 833.

14. Attorney at law censured - physical contest with court officers in
presence of court. Attorney at law censured for disorderly conduct before
a city magistrate to whom he refused to give up a paper when ordered to do
so and for physically defending his possession against court attendants
and policemen. Matter of Reinhardt, 843.

15. Attorney at law disbarred — conversion - speculating with client's
money. Attorney at law disbarred for speculating in stocks with moneys
intrusted to him by a client to be held in trust and for converting the same
to his own use. Matter of Haire, 847.

Censure of attorney.

Matter of O'Neill, 973.

Petition by attorney of administratrix to compel accounting-lien for
services.
See DECEDENT'S ESTATE, 5.

BANKING.

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1. Statutory liability of stockholder for debts of insolvent bank — unre-
stricted sale of stock before insolvency of bank -failure of purchaser to
have stock transferred on bank books-when record owner cannot look
to purchaser for indemnification rule where trust relationship
exists between seller and buyer. Where the owners of bank stock sold
the same at public auction without restriction or inquiry as to the finan-
cial or other qualifications of the bidder, or any other restriction except
as to price, and the stock was purchased at public auction by brokers,
acting for undisclosed principals, who paid the purchase price, received
the stock indorsed in blank and delivered it to their principals, the orig-
inal owners who remained the record owners on the books of the bank
because the purchaser never caused a transfer of the stock to be made,
are liable on the subsequent failure of the bank for the statutory lia-
bility of stockholders under sections 71 and 72 of the Banking Law. And
being charged with a judgment for their statutory liabilities are not
entitled to indemnification from the brokers who purchased the stock for
the undisclosed principals.

BANKING - Continued.

As there was no relationship between the vendors of the stock and the
purchaser thereof, save that of seller and purchaser, and as the sellers did
not rely upon the credit of the buyer, and were indifferent as to the
identity of the transferee to whom they delivered the certificates indorsed
in blank, there was no duty resting on the purchaser to cause the transfer
to be made on the books of the bank to their principals for whom the
purchases were made.

It seems, that in order to charge the purchaser of such stock with the
duty of indemnifying the record owner when charged with the statutory
liability, there must be a trust relation between the nominal and regis-
tered owner and the actual owner or purchaser, whereby the nominal
owner is trustee and the actual owner cestui que trust as to all dividends
or increments on the stock, the actual owner in return being entitled to
the profits in the stock so to be bound to indemnify the nominal owner
against any call or assessment thereon. Moreover, it seems, that this
trust relationship exists as to each actual owner of the stock only so long
as he remains the owner, and when he parts with the stock to a succeed-
ing purchaser so as to be no longer entitled to the profits thereon, he is
no longer bound to indemnify the record owner against calls.

It seems, that it is as much the right and duty of the transferrer
of shares of stock to procure transfer to be made upon the books of the
corporation as it is that of the transferee. Richards v. Robin, 296.

2. Statutory liability of stockholders — unauthorized record in name
of another failure to repudiate unauthorized act — ratification. A
person is a stockholder in a banking institution and subject to the indi-
vidual liability of a stockholder (1) where his name appears on the books
of the corporation as a stockholder, or (2) where he is the owner of the
stock legally or equitably, although the same may be recorded in the
name of another, except a person who holds stock as security for the
payment of a debt.

While a person cannot wrongfully cause another to be recorded upon
the books of a banking corporation as a stockholder without his knowledge
or consent so as to make him liable, yet where a purchaser of banking
stock without authority caused it to be recorded in the name of another,
the latter may be charged with the statutory liability where the fact of
the unauthorized record having been brought to his knowledge, he did
not repudiate the act. Although the act was originally unauthorized
his failure to repudiate it amounted to a ratification. Richards v. Acker-
тап, 746.

Liability on cashier's checks - consideration.

See BILLS AND NOTES, 3.

Jurisdiction of surrogate to determine ownership of bank account.
See DECEDENT'S ESTATE, 6.

Deposit in savings bank by husband in wife's name.

See GIFT.

Bond insuring transmission of money to foreign countries,

See GUARANTY AND SURETYSHIP, 2.

BANKRUPTCY.

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Conversion of stock by stockbrokers debt not discharged in bank-
ruptcy evidence value of stocks - appeal from direction of verdict
for plaintiff-effect of failure of defendant to take exception. Where
stockbrokers, having possession of stocks purchased and paid for
in full by a customer who had instructed them to have the stocks trans-
ferred to his name on the books of the corporation, failed to obey the
direction and converted the same to their own use by hypothecating
them within a few hours before their bankruptcy so that the stocks
were never delivered to the customer, they were guilty of a willful and
malicious injury to the property of another within the meaning of
the Bankruptcy Act and their liability therefor is not discharged in
bankruptcy.

It seems, that the value paid for such stock in the open market a day or
two before the conversion is some evidence of value.

Where the court by directing a verdict for the plaintiff determined as a
matter of law that the defenses of the defendant were insufficient and