Another ground of defense is that the plaintiff by adjudication has violated her contract with the defendant, and, under the contract itself, where she has violated any part thereof, her allowance was to be reduced from $250 per month to $75 per month. This defense is claimed to be supported both by the evidence and upon a former decree of this court, which is alleged as res adjudicata, that she had violated her contract. As a matter of evidence the defense is not good. The mother in no way consented to the boy leaving the school. She endeavored to get him to return, and, instead of interfering with the boy's schooling, she actually assisted the father in his effort to have the boy return to school.

There is no provision in the contract as to who shall have the custody of this boy in case he should willfully refuse to remain in school, or refuse to accept the support offered by the father, as was contemplated in the contract itself. After his schooling his custody was given to the mother, if the boy so elect; the mother so wishing. The provision in the contract giving to the husband the right to support, educate, and maintain the son is not a provision as to the custody of the son before his education is finished, provided the son should willfully, whether with or without excuse, refuse to accept the education or support that the father offered. The right to support and maintain the son is the right to pay therefor at the place selected by the father for his support, and if the son refuses his support at the place selected by the father, he incurs no liability for that support, furnished either by the mother or any other person. The boy did refuse to return to the father, and thus relieved the father of the obligation to support the son. That was the only issue that was necessary to be decided in the former action, where she was suing for the moneys she advanced for the support of the son. The mother refused to consent that the boy reside with the father, and did harbor him and support him. He made no demand for his custody. But, where the provision is silent as to the custody of the son in case the son shall willfully refuse support or maintenance at the place named by the father, the mother, with equal rights to the custody of the son, has the absolute right to harbor him, so long only as the fact of her harboring the son was not an effective interference with his right to educate, support, and maintain the son. In the former case judgment went for the plaintiff in the trial court. On appeal to this court that judgment was reversed (201 App. Div. 414, 194 N. Y. Supp. 28), and new findings made. In the original findings it was found that the plaintiff refused to yield up the right of the boy's education and custody for any portion of the time to the father. That would constitute a breach of the contract. But those findings were resettled by this court, and all that was found was that the plaintiff harbored the boy when she knew he refused to attend school and prepare for college and be educated as the father might and did order and direct the boy to be educated. These resettled findings by this court upon the former appeal are very significant.. They indicate the extent of the adjudication then made. The order of resettlement has been affirmed by the Court of Appeals. The order struck out the finding first made, that the plaintiff refused to yield up the right of

(202 N.Y.S.)

the boy's education for a portion of the time to the father. It appears in this case that the mother did actually endeavor to get the boy to go back to school and be educated as the father desired, but the boy absolutely refused to do so, unless the father would pay to the mother the amounts due to her under the agreement, which the father refused to do in violation of his agreement, telling the son that it was none of his business. The court afterwards compelled such payment.

If my view of the law is right, that the contract makes no provision in case the son refuse to accept the education or support that the father provided, without the mother's intervention, the mother has an equal right under the statute to the custody of the son. The refusal of the boy to accept the support and maintenance that the father provided would only release the father from liability for that support and maintenance, and the mother harboring the son after he had so refused would not be in any way a violation of the agreement upon her part so as to forfeit her right to the allowance of $250, as provided in the agreement of separation. The interpretation of these agreements should be reasonable, and how a mother could do otherwise under the facts in this case is incomprehensible.

That the judgment is only res adjudicata upon the matters necessarily involved in the former litigation is settled law, as indicated in 15 Ruling Case Law, p. 980, and cases there cited, both in New York and other states, and the provision in the agreement for the custody of the child by his mother, in case he should leave his school by permission, and the custody after his education is finished, is a matter left to his discretion and the mother's option, and from the record his desire is shown to live with the mother rather than with the father.

These provisions of the agreement are significant in interpreting the clause in the contract giving to the father, not the custody, but the sole right to support and maintain the son. By the judgment of the trial court in this action, for the plaintiff, all questions of fact are presumptively found in plaintiff's favor.

The determination of the Appellate Term should therefore be affirmed, with costs.

MERRELL, J., concurs.

In re GILBERT.

In re SWEETLAND.

(Supreme Court, Appellate Division, Third Department. January 17, 1924.) 1. Attorney and client 53(2)—Evidence of attorneys' collusion and malpractice held sufficient to require suspension.

In disbarment proceedings, evidence held sufficient to warrant a finding of collusion and malpractice between attorneys of the parties to an action for separation, requiring exercise of the disciplinary powers of the court. 2. Attorney and client 44 (1)-Hiring detective to spy on client held prejudicial to administration of justice.

Hiring a detective to spy on attorney's own client, to furnish proofs for adverse party in separation proceeding, would be unprofessional conduct, prejudicial to the administration of justice.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In the matter of proceedings to disbar F. Newell Gilbert and Monroe M. Sweetland. On the report of the official referée. Conclusions of the referee disapproved, and attorneys suspended for six months.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, and HINMAN, JJ.

Charles J. Herrick, Dist. Atty., of Albany, designated by the court to prosecute proceedings.

Thomas J. Mangan, of Binghamton, for respondent Gilbert.
Charles H. Blood, of Ithaca, for respondent Sweetland.

PER CURIAM. [1] A situation bearing all the earmarks of a collusive divorce or the betrayal of a client was detected by the trial justice at the time of the trial. He sharply and unexpectedly confronted the respondents with the fact that he had detected the compromising situation. A paper in the handwriting of Gilbert, the attorney for the plaintiff, purporting to be the statement of a witness who had just testified against Gilbert's client, was in the possession of the defendant's attorney, Sweetland, and had been used by Sweetland to guide him in his examination of that witness. The trial justice recognized the handwriting of Gilbert. The witness was recalled, and, when questioned by the court, stated that he had been employed by Gilbert. The statement, however, which was drawn up by Gilbert, purported to represent that the witness had been employed by the client of Sweetland. The only proof in the case justifying the divorce was that offered by this witness and his employee or agent. Gilbert's client, the husband, had sued for a separation on the ground of cruel and inhuman treatment. The wife answered by denial and counterclaim, urging desertion as a ground for separation. An amended answer, however, was served, and a further counterclaim was added, setting up allegations of adultery and asking for a divorce. A reply was served, setting up denials as to both counterclaims.

The trial had every appearance of being a perfunctory presentation of evidence sufficient to meet the legal requirements in uncontested divorce suits. There was no cross-examination of the defendant's witnesses as to the act of adultery. The plaintiff was not present at the trial. He remained outside. The only witness sworn for the plaintiff was his mother, who was sworn simply for the purpose of testifying as to his income, in order that the court might be able to fix the amount of money to be paid to the wife for the support of their only child, which was then in the custody of the wife. The custody of the child was an important consideration, and apparently had led to the prosecution of the original separation actions, because the parties had been living apart for some time, living with their respective parents and each self-supporting. He was being paid wages to work on his father's farm, and she was teaching school. The retention of the custody of the child by the wife was not resisted upon the trial, although the complaint had alleged the wife's unfitness. Apparently the parties had made an amicable arrangement of their differences, so far as they could do so without the aid of the court.

Surely this was an occasion for the respondents to be conscious of the fact that a strong prima facie case of collusion had been disclosed,

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but neither of them sought to justify their conduct. They left the courtroom without attempting to do so. They were uneasy about it, but withheld all effort at explanation until they were summoned to appear before this court. They were given an opportunity to make a voluntary statement. Each availed himself of that opportunity A considerable time had elapsed since the trial, and they had had plenty of time during that disturbing period to prepare themselves for a full and frank statement. No such full and frank statement was made. A reference was ordered, and then for the first time they presented a story which has so impressed the learned official referee that he has recommended the dismissal of the charges.

We are not convinced, however, that the referee has reached the proper conclusion. We think he has overlooked important aspects of the testimony, which, taken with the whole history of the case, convince us to the contrary. As we view the case, an action for separation, started by Gilbert, naturally precipitated the very thing which happened. The complaint was framed with such harsh allegations as would naturally prompt the wife to desire a divorce, rather than to try such issues of cruel and inhuman treatment alleged against her, and to risk the loss of the custody of her child. The plaintiff's mother had been asked by the wife to get an annulment of the marriage for her son, and the mother had said, "It is up to you to get a divorce." The wife defended the separation action and employed Sweetland. The very first time Sweetland met Gilbert, upon a motion by the former for alimony and counsel fees, Sweetland suggests to Gilbert the possibility of getting a divorce against Gilbert's client. Gilbert assures him that such proof is obtainable and offers to be helpful. This was on March 21st. The act of adultery proved at the trial took place on March 27th. On April 7th Gilbert sent to Sweetland a letter telling Sweetland how to frame his allegations as to adultery in his counterclaim, and intimated that the proofs would be supplied, and which were supplied.

It is difficult to see how Gilbert rendered any service to his client, unless it was in making every effort to have a judgment of divorce rendered against his client. It is not difficult to believe that there was in fact collusion. The trial was a farce, delayed until Sweetland could get his counsel fees fully paid. Gilbert furnished the allegations and proofs after a talk with Sweetland, and after a talk between Sweetland's client and the mother of Gilbert's client, of which Gilbert was informed. Gilbert wrote to Sweetland that he would bring the witnesses with him to the trial, and he brought them with the plaintiff and his mother. The witness Beasly says he was hired in February, but he had no data to show it, and he had not discovered any proofs against the plaintiff until March 27th. His associate witness had not been out with him on this case before March 27th. The plaintiff's mother simply says she "might" have had a talk with Gilbert in February about watching her son. If it be true that she did have an advance talk with Gilbert on this subject, it is more consistent with the facts of this case that there was a complete understanding at that time that this divorce should be arranged. Beasly says he was hired by Gilbert, and did not suppose he was acting for the wife; but Gilbert wrote his statement for him, and made it clearly appear that he had been acting

for the wife. Gilbert wrote this statement twice, and each time made it so appear, and yet Gilbert now makes the astounding claim that he meant that Beasly was acting for the plaintiff's mother. The plaintiff says that, when the detectives caught him in the room in the hotel, he went home and told his mother about it. They went together to the city and saw Gilbert, and told Gilbert to allow the defendant to use the testimony. About a week later Gilbert framed the necessary allegations and sent them to Sweetland. About a week subsequent to that Gilbert prepared a reply to the counterclaim, and had his client verify a reply denying the very act of adultery of which he had obtained proof, and about which the son had come to his office to tell him. The son now denies that he actually committed adultery, but the circumstances were such as to indicate that, if not guilty of the act, he must have been a party to a prearranged affair having every appearance of guilt on his part, for the very purpose of obtaining a collusive divorce. This explains why the son had so unnaturally reported to his mother that he had been caught in a hotel room with a woman by the detectives. It is incredible that he would have done so, if there had not been an understanding between them and an arrangement aided by Gilbert. To tie all these facts together we have the admission of Gilbert as to a conversation which his client's mother had with him, in which she said:

"My daughter-in-law came to me and wanted me to annul the marriage; then I said to her, 'It is up to you to get a divorce.' She says, 'Now, if they want their divorce, they can have it.'"

This is strangely like a slip that proves the mother and son wanted to have the wife get the divorce all the time; that the wife had talked to the mother; that the mother had talked to Gilbert; that Sweetland talked to Gilbert after a conference with the wife; that Sweetland expected Gilbert to furnish the proofs; that subsequently the proof was arranged and supplied. We think the conduct of the son is consistent with a guilty knowledge that he was to be watched; that he approved of it, furnished the occasion, and was a party to the collusion. We think that Gilbert was also party to it. He sought to avoid suspicion, by making it appear in the statement written by him that Beasly was hired by the wife. He did not count on having his handwriting detected, nor on having Beasly admit to the court that Gilbert had hired him. He knew he was having his client swear falsely in verifying the reply denying the act of adultery, or that his client had feigned an act of adultery as a part of an arrangement to get a collusive divorce. In either event, he was guilty of conduct prejudicial to the administration of justice.

[2] If we are not to explain the son's conduct in having admitted his experience at the hotel to his mother on the theory that he had been a party to an arrangement, we can only explain his admission to her on the ground that she had been informed of it by Gilbert and confronted her son with it. If so, Gilbert hired a detective to spy upon his own client at the request of another, and when proofs were obtained, which the attorney for the adverse party sought, and which he agreed to supply, his client was in a very real sense forced to consent to the use of the proofs against him. Such betrayal of a client would be unprofessional conduct, prejudicial to the administration of justice.