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First Department, November, 1916.

[Vol. 175. respondent she and the respondent went over to the railroad depot and there at the request of the respondent she indorsed the check to him, he having told her that if she did not indorse the check he could not pay the undertaker; that she gave the check to the respondent and said to him: “Mr. Little, try to get our money;" that the respondent replied: "You cannot get it, because your aunt died without a will, and you can't get it under a year's time; I have to turn that over to the Surrogate's Court at Jamaica."

Thereafter the respondent paid the undertaker's bill, amounting to $158, and gave Lavinia Poole $25 to pay the rental of the receiving vault.

Upon the expiration of a year from the time letters of administration were granted Lavinia Poole called at the Surrogate's Court at Jamaica and learned that no money belonging to the estate was on deposit there. She then took the matter up with various lawyers, with the result that charges were preferred against the respondent.

The respondent denies that he told her the money had to be deposited with the surrogate. He testified that there being a slight delay in the issuance of the letters, "I saw her once or twice at the house, and the letters had not been issued; she was anxious about them, and so was I; I telephoned over to the clerk's office, and was informed that they had not yet been issued, and I talked with her about the fact that possibly the Surrogate had not accepted or would not accept her sureties; and I said that I could get the National Surety Company to go bondsman for her, but that I did not want to do that because if I did they would require that all the money in the banks be deposited with them. We had some talk on that subject at the house; I said that I did not want to do that; that the money in the New York bank, and the rents she got from the farmer, the property or real estate, she could have herself, and that I would take the money in the Queens County Savings Bank, pay the funeral bill, and pay whatever other expenses there might be, and when the time came to account I would give her the balance with six per cent interest for the time that I had it, if she did not object. not."

She said no, she did

App. Div.]

First Department, November, 1916.

After the letters were issued he testified: "And I met her the next day at the bank in Flushing, stopping at the Attorney-General's office to get the waivers, and got this money from the bank and went over. She told me she was going back to Jamaica, and I told her I was going to New York. I asked her if she would endorse the check and let me have it. She said 'certainly' and endorsed it and handed it back to me." The learned referee has reported "although the complaining witness is an uneducated colored woman, I am inclined to the opinion that her testimony is substantially correct. I believe it to be her best recollection of what took place as understood by her at the time of the transactions.

"It is evident from the state of the respondent's bank account that he used the money for his personal expenses. He does not deny that he so used the money, but testifies that he had her permission to use it upon the promise that he would repay the amount with interest when the time came to account. On this question it is not unreasonable to conclude from the contradictory testimony that the minds of the parties did not meet and that the transaction was understood by each as they respectively testify. Even though the respondent had permission from her to keep the money until the time came for her to account, as he testifies, it was wrong and violative of sound professional ethics for him, acting as attorney for her as administratrix, to borrow money from her, giving in return neither collateral security nor any written evidence of the debt.

"After the expiration of the year Lavinia Poole through two different attorneys made efforts to have the money returned to her but with no effect. After this proceeding was instituted he began to pay her in installments until the amount aggregated $234.97, leaving a balance still unpaid of $159.98, which he claims should be allowed for professional services rendered."

The learned referee concludes, "upon this state of facts, it is clear that it must be held that the respondent failed in his duty to his client, and is guilty of misconduct in his profession.'

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A reading of the record and the exhibits satisfies us that the respondent's necessitous condition caused him to appropriate

Third Department, November, 1916.

[Vol. 175. his client's money to his own use and that his claim that she loaned it to him until such time as she would be called upon to account on the payment of six per cent interest by him to her is not in accordance with the facts. She went to the surrogate's office at the expiration of the year for the purpose of getting her money, and there found for the first time that it had not been deposited, whereupon she commenced her efforts to recover. The fact that respondent has repaid a portion of the moneys so appropriated to his own use during the course of this proceeding is met by what we said in Matter of Levor (169 App. Div. 642): "He received his client's money, deposited it in his own bank account, drew it out and used it for his own purposes and until spurred to activity by the charges made against him took no steps toward paying his client what was due her, and showed no disposition or intention of making such payment. This was clearly professional misconduct, and we cannot accept the fact of payment under the spur of disciplinary proceedings as a satisfactory condonation of his offense." We think the respondent was clearly guilty of professional misconduct and should be disbarred.

MCLAUGHLIN, SCOTT, DOWLING and SMITH, JJ., concurred. Respondent disbarred. Order to be settled on notice.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of RAYMOND DALE, Respondent, for Compensation under the Workmen's Compensation Law, v. HUAL CONSTRUCTION COMPANY, Alleged Employer, and CASUALTY COMPANY OF AMERICA, Insurance Carrier, Appellants.

Third Department, November 15, 1916.

Workmen's Compensation Law - when relation of employer and employee exists within meaning of statute — hiring of team and driver from another.

Where a construction company hires a team and driver from another and places them under the control and direction of its foreman, and said company, although having no authority to discharge the driver, has

App. Div.]

Third Department, November, 1916.

power to refuse to continue him and the team in its service, said driver will be held to be in the employ of the company within the meaning of the Workmen's Compensation Law.

APPEAL by the defendants, Hual Construction Company and another, from an award of the State Industrial Commission. bearing date of May 24, 1916.

Thomas H. Guy, for the appellants.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge for the State Industrial Commission, for the respondents.

KELLOGG, P. J.:

The question is whether the injured person was in the employ of the appellant Hual Construction Company at the time of the accident. He was in the regular employ of Semon Lippert in driving his team, and had been in that employ for sometime, receiving therefor from him one dollar a day and board and lodging. The construction company required the services of teams and drivers in conducting its business, but having no teams of its own, it contracted with Huntley & McGorray, two of its officials, to furnish it the necessary teams at six dollars and fifty cents a day. They did not have enough teams, and secured additional teams of one Garrity, who was in the teaming business, for which they paid him six dollars a day. Garrity, not having enough teams, secured additional teams of Semon Lippert, for which Lippert received from Garrity six dollars per day. Dale, the driver of Lippert's team, while hauling sand for the company was under the control and direct tion of its foreman. The company had no authority to discharge Dale, but evidently had authority to refuse to continue him and the team in its service longer.

I think the Commission was justified in determining, under the circumstances, that Dale was in the employment of the construction company at the time of the accident. Under substantially similar facts we held in Matter of Gimber v. Kane Co. (171 App. Div. 958), on the authority of Miller v. North Hudson Contracting Co. (166 App. Div. 348, affg. the award in 2 State Dept. Rep. [Off.] 475), that the special employer was

Third Department, November, 1916.

[Vol. 175. liable under the act. In Matter of Dale v. Saunders Bros. (171 App. Div. 528; affd., 218 N. Y. 59) we held that under like circumstances the owner of the team was liable as employer, and, referring to the Gimber case, assumed that in such cases either the general or special employer might be liable. The Dale case was affirmed by the Court of Appeals, thus establishing the liability of the general employer. Hartell v. Simonson & Son Co. (218 N. Y. 345) sustains the conclusion in the Gimber case, that the special employer may be required to make compensation in such a case.

The award should, therefore, be affirmed.

Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of SOFIO BOSCARINO, Respondent, for Compensation under the Workmen's Compensation Law, v. CARFAGNO & DRAGONETTE, INC., Employer, and MASSACHUSETTS BONDING AND INSURANCE COMPANY, Insurance Carrier, Appellants.

Third Department, November 15, 1916.

Workmen's Compensation Law-loss of vision of eighty per cent of eye held equal to loss of use of eye.

Conclusion of the State Industrial Commission that the loss of the vision of eighty per cent of an eye is equal to the loss of the use of the eye for vocational purposes, approved.

LYON and COCHRANE, JJ., dissented, with opinion.

APPEAL by Carfagno & Dragonette, Inc., and another from an award of the State Industrial Commission, made on the 29th day of October, 1915.

Nellis & Nellis [Andrew J. Nellis of counsel], for the appellants.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge, attorney for State Industrial Commission, for the respondents.

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