First Department, December, 1916. [Vol. 175. respondent was guilty of a conversion of his client's money in the sum of at least $1,462.50, which he has since repaid. And as to the balance of $1,000 which remains unpaid, we are of opinion that the evidence establishes that the respondent had no claim to it. Julia Dale denied that she signed the alleged agreement of December 29, 1908, or that such an agreement was even suggested to her. Aside from the testimony of the respondent, there is an entire absence of any evidence that the agreement between Dale and the respondent contemplated any payment for services in excess of $750. The respondent's receipt of January 2, 1909, is cogent evidence to the contrary. It is highly improbable that the respondent would have signed this receipt, limiting his fees to $500, if Julia Dale had agreed to pay him over double that sum. The respondent testified that a man named George Horn was present when the agreement of December 29, 1908, was signed, but, although he produced a man before the official referee whom he stated to be Horn, he did not call him as a witness. But irrespective of the genuineness of Julia Dale's signature to this alleged agreement, the respondent's conduct and letters are replete with admissions that he never considered this writing a binding agreement between himself and client. As late as June 3, 1914, he wrote Mrs. Dale: "Your letter of the 1st received. I certainly intend to pay you the $1,000 and interest. Will you please call and see me either Saturday A. M. or Monday A. M.” The respondent repeatedly admitted to Ralph K. Jacobs, an attorney retained by Mrs. Dale, that he owed the balance of $1,000 to her. Her claim having been subsequently pressed by the Legal Aid Society, the respondent admitted to its representative, Henschel, that he owed Mrs. Dale this money and was willing to pay her with interest as soon as possible. Numerous letters passed between the respondent and Henschel, none of which contained any suggestion of a right in the respondent to these moneys, or a denial of the respondent's liability therefor. Henschel succeeded in collecting only twenty-five dollars on account of the claim, which was then sent to one McGee, the chief attorney for the society. The respondent promised McGee to pay the balance in installments, App. Div.] First Department, December, 1916. without asserting any claim to any part of the same as a legal fee, but he paid McGee only fifty dollars on account. The excuse presented by the respondent for the non-payment of any part of the $2,500 until after the summary proceeding had been brought against him, and for his delay in paying over the $1,462.50 as directed by the court, and for his nonpayment of the sum of $1,000, except the small payments on account referred to above, is as follows: The respondent was in business with a man named E. B. Carr, who had access to the respondent's safe combination. In this safe he and Carr had certain stocks of the aggregate value of about $10,000. In the respondent's absence, Carr, by claiming a copartnership with him, took the stock from the safe, together with some $800 in money, and a certificate of deposit which Carr had paid over to him for $1,200 more. As to the check which he received from Mrs. Dale, respondent testified: "When I received these moneys I held the stocks as security, I had held trust funds before, and I got stocks that I considered perfectly safe, buying them outright through a broker; so that the party for whom I held money in trust would get six per cent. * * I don't remember now whether it was deposited or whether I used it; I substituted securities that I knew to be good." * The respondent testified that the alleged robbery by Carr left him short; that he followed Carr up and recovered part of the stocks from him upon payment of $1,500, which continued to keep him short; and that the robbery was the sole reason for his defaults. Referring to this excuse on the part of the respondent, the learned official referee in his report says: "But this excuse does not excuse, for the testimony of the respondent as a whole clearly shows that he speculated with his client's money and expected to be able to pay it back out of the stock purchased with it. In his affidavit in opposition to the motion before Judge GIEGERICH, the respondent did not mention the so-called robbery, but gave other reasons for nonpayment. It also appears not to have been mentioned to Ralph H. Jacobs, Mr. Henschel or Mr. McGee. But whether the testimony of the respondent on this point is true or false, the conclusion is unavoidable that the respondent in speculating with his client's money in First Department, December, 1916. [Vol. 175. the purchase of stocks was guilty of a conversion, and the same result would be reached even if the purchase of the stocks were treated simply as an unauthorized and unlawful investment of trust funds. I feel, therefore, in duty bound to find the respondent guilty, by reason of such conversion, of misconduct in his office of attorney and counsellor at law. In conclusion, it may be stated that the conviction of Mrs. Dale was affirmed by the Appellate Division and that no appeal from the judgment of affirmance was taken to the Court of Appeals." The respondent urges that the official referee is in error in respect to the respondent's having purchased the stocks referred to with the trust fund. If the evidence is not susceptible of such an inference, the conduct of the respondent is none the less reprehensible, for he has assumed the right to use his client's money for his own purposes, trusting to his ability to repay the same upon demand. This is the excuse usually put forward when unfaithful fiduciaries are called to account. There is no escape from the conclusion that respondent betrayed his trust and converted his client's money to his own use. Upon the facts shown it clearly appears that the respondent has been guilty of misconduct in his office and is unfit to remain a member of the honorable profession of the law. He is, therefore, disbarred. LAUGHLIN, DOWLING, SMITH and DAVIS, JJ., concurred. CHRISTINE ROLT-WHEELER, Respondent, v. FRANCIS ROLTWHEELER, Appellant. First Department, December 29, 1916. Husband and wife - alimony - enforcement of judgment for arrears of alimony - when sequestration proceedings do not lie - execution against husband's wages - Code Civil Procedure, § 1391. A wife who has obtained a judgment against her husband for unpaid alimony which was awarded under a decree for separation and who has had an execution against her husband's property returned unsatisfied App. Div.] First Department, December, 1916. cannot maintain sequestration proceedings to reach wages due and owing to her husband, it being conceded that he has no other property real or personal. Her remedy is to apply for an order under section 1391 of the Code of Civil Procedure, which applies not only to the prospective earnings of the judgment debtor, but also to accrued earnings which have not yet been paid. LAUGHLIN, J., dissented. APPEAL by the defendant, Francis Rolt-Wheeler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of May, 1916, sequestering certain of defendant's property. Otto A. Gillig, for the appellant. Arthur J. Westermayr, for the respondent. DOWLING, J.: This action was brought by plaintiff against the defendant, her husband, for a separation on the ground of cruel and inhuman treatment, abandonment and non-support. An order having been made requiring defendant to pay to plaintiff for her support and that of her two children the sum of fifteen dollars weekly, and defendant having failed to comply therewith although served with a certified copy thereof, he was committed to the county jail in the county of New York, and remained therein until discharged according to law. On March 15, 1916, judgment was entered in favor of plaintiff against defendant in the sum of $346, representing alimony accumulated to that date. On March 23, 1916, execution thereon was returned unsatisfied by the sheriff of the county of New York. On April 24, 1916, plaintiff obtained an order to show cause "why an order should not be made sequestrating the property of the defendant now in the possession of the Board of Education of the City of New York." This order to show cause was based on an affidavit of plaintiff wherein, among other things, she alleges: "That the defendant has no property, real or personal, of which the deponent has any knowledge, and that he is engaged in literary work and earns various sums of money from time to time, averaging, as deponent is informed and believes, from Sixty First Department, December, 1916. [Vol. 175. ($60.00) Dollars to Sixty-five ($65.00) per week. That the defendant is a lecturer for the Board of Education, and as such is called upon and does deliver lectures for the lecture system of the Board of Education in various parts of the City of New York. That there is at present due the defendant for such lectures the sum of One Hundred and Sixty ($160.00) Dollars, which said sum has been duly audited and ordered to be paid by the comptroller of the City of New York. That a thirdparty order was issued out of this Court, under which the officers of the Board of Education made proof that the sum of One Hundred and Sixty ($160.00) Dollars is at present due the defendant for lectures delivered, and that the said sum of One Hundred and Sixty ($160.00) Dollars had been passed through the department and ordered to be paid as aforesaid. That an order has been made herein by Justice Bijur, directing the comptroller of the City of New York or other proper officials of the City of New York to pay over to the sheriff of the County of New York the said sum of One Hundred and Sixty ($160.00) Dollars, but the said order has not been obeyed upon the ground that the procedure was irregular and that sequestration proceedings must be taken to secure the payment as aforesaid. That, accordingly, these proceedings for the sequestration of said sum are hereby instituted.” The answering affidavit of the defendant, among other things, avers that "the sum of $160 referred to in the moving papers, which plaintiff seeks to sequestrate, is due to me from the Board of Education of the City of New York for wages as lecturer." The order of sequestration herein was improperly granted. Concededly, defendant had no property, real or personal. The amount due him by the board of education represented, if not wages or salary, certainly earnings. The plaintiff could not change the character of this fund by delaying or preventing its payment over to defendant. The case comes directly within the scope of section 1391 of the Code of Civil Procedure, providing that "Where a judgment has been recovered and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and |