First Department, November, 1911. App. Div.] HARRIET NUGENT, an Infant, . METROPOLITAN STREET RAILWAY COMPANY. In the Matter of Charges against BENJAMIN OPPENHEIM. First Department, November 3, 1911. New trial-motion granted on perjured testimony - reargument attorney - disbarment - application for reinstatement. Where the defendant in a negligence action was granted a new trial upon admissions by the plaintiff's witnesses that, through a conspiracy with the plaintiff's attorney, they had given false testimony at trial, and where the witnesses, when admitting their perjury before a referee, testified that they received no compensation from the defendant for admitting their guilt, the plaintiff should be allowed a reargument of the motion for a new trial where it is subsequently discovered that, as a matter of fact, the retracting witnesses were in the pay of the defendant and the referee received a fee from the defendant out of all proportion to the value of his services. Moreover, where the plaintiff's attorney was disbarred upon findings that he had been guilty of the conspiracy aforesaid, his petition for reinstatement should be referred to the official referee, and the Bar Association be asked to intervene and take such action as the evidence adduced may require. MOTION by the plaintiff, Harriet Nugent, an infant, to vacate an order granting a new trial. Also, a motion for the reinstatement of the respondent, Benjamin Oppenheim. Edward W. S. Johnston, for the motion. Harford T. Marshall, opposed. SCOTT, J.: These two motions involve the same facts. In the first motion the plaintiff asks for a vacation of an order of this court granting defendant's motion for a new trial. In the second motion Benjamin Oppenheim asks that an order disbarring him be vacated and that he be restored as a member of the bar. The history of the case is as follows: On May 5, 1896, the plaintiff Nugent, then an infant about three and a half years of age, was run over by one of the First Department, November, 1911. [Vol. 146. defendant's one-horse cars on Madison street. She was injured so that one of her legs had to be amputated and she brougnt an action against the railroad company to recover damages for her injuries, in which Benjamin Oppenheim was her attorney. The cause came on for trial on June 4, 1897, before the late Justice JOSEPH F. BARNARD and resulted in a verdict for $5,000. On the trial no question was made as to the extent of plaintiff's injuries nor to the fact that she was run over by the car, the sole controversy being as to the driver's negligence. The plaintiff's theory was that she had left the curb and started to cross the street when the car was yet some distance away, so that the driver, if he had been attentive, had ample time to have seen the child and avoided the accident, but that he was not looking ahead, but was looking over his shoulder to one side, at a white mother and her baby standing in the doorway of a Chinese laundry. An appeal was taken to this court and the judgment affirmed in May, 1897. (See 17 App. Div. 582.) An appeal was taken to the Court of Appeals, but pending that appeal and on May 24, 1899, a motion was made, upon an order to show cause, for a vacation of the judgment and a new trial on the ground that the plaintiff's witnesses had been guilty of perjury and that the verdict had been obtained as the result of a conspiracy between Oppenheim, the attorney, and said witnesses, and by fraud and imposition upon the court. It was referred to a referee to take the proof of the facts. He reported that the charges of fraud and conspiracy had been established and advised that the motion to vacate the judg ment be granted. The Special Term, however, refused to confirm the report and denied the motion. On appeal to this court the order was reversed, and the motion to vacate granted. (See 46 App. Div. 105.) The Metropolitan Street Railway Company thereupon instituted proceedings to disbar Oppenheim. These were referred to Hamilton Odell, Esq., who reported that the charges had been sustained, whereupon Oppenheim was disbarred. (See Matter of Metropolitan Street R. Co., 58 App. Div. 510.) It appears that when Oppenheim was retained in the case (under a fifty per cent contingent fee contract) and was in First Department, November, 1911. App. Div.] search of witnesses he came across a young Italian barber named Porcia, whom he employed to seek out witnesses. He found two young girls, who testified on the trial that they had seen the accident, and gave evidence relating thereto which served to sustain plaintiff's theory of the case. After the affirmance of the judgment by the Appellate Division one Julian, an investigator in the employ of the railroad company, employed Porcia on behalf of the railroad company, and by his aid got into touch with two of the witnesses, Mamie Langstaff and Sadie McDonald, as well as Emma Langstaff, the mother of Mamie, and one Samuel Strom. These all made affidavits in support of the motion for a new trial, to the effect that Mamie Langstaff and Sadie McDonald had not seen the accident at all, and so informed Oppenheim, but that under his urging and inducement they had agreed to tell the stories which they told on the stand, in which they said they had been carefully coached by Oppenheim. Samuel Strom testified that Oppenheim had unsuccessfully attempted to induce him to testify falsely upon the trial. Before the referee all these witnesses reiterated and amplified the statements in their affidavits, and all of them, except Porcia, swore that they had received no compensation from the railway company. Porcia swore that he had been paid a small amount, not exceeding forty dollars, for services in other cases, but nothing whatever for services in New York city. The referee on the motion for a new trial, as has been said, reported in favor of the company's application. It is alleged and not denied that he was paid by the railroad company a referee's fee out of all proportion to his services. Substantially the same evidence used on the motion for a new trial was also used on the application for Oppenheim's disbarment. It is quite evident from a reading of the opinions in this court that the basis for granting the new trial and for disbarring Oppenheim was the belief that Oppenheim had conspired with the witnesses Langstaff and McDonald and had induced them to commit perjury on the trial. The sole foundation for this belief was the evidence given by those witnesses and the First Department, November, 1911. [Vol. 146. others above named, before the two referees to whom were referred the motion for a new trial and the application for disbarment. If it had appeared that all those witnesses were then in the pay of the railway company, it is certainly very doubtful whether this court would have accepted their evidence. It does now so appear. By a curious combination of circumstances there came to light during the trial of the charges against District Attorney Jerome a trunkful of vouchers showing payments by the Metropolitan Street Railway in connection with actions for damages. From this it appears (and is not disputed) that all of the witnesses upon whose evidence the motion for a new trial and the disbarment of Oppenheim was granted were under pay from the railway company before and during the time that these proceedings were pending. The motion for a new trial was made May 24, 1899. Porcia was paid various sums from December 5, 1898, to April 20, 1901, aggregating $1,119.50. Of this amount he had been paid $227 up to June 20, 1899, when both he and Julian testified that he had been paid in all not to exceed $40 or $42. Mary Langstaff, one of the retracting witnesses, who swore she had been paid nothing, was in fact paid $160, commencing May 24, 1899, down to July 16, 1901. Mrs. Langstaff, her mother, was paid $250 from May 24, 1899, to April 3, 1900. Sadie McDonald, the other retracting witness, was paid $462, from May 15, 1899, to April 3, 1901. Samuel Strom, who testified that Oppenheim tried to induce him to swear falsely, was paid $100 from May 24 to September 22, 1899, and his father and brother were paid $40 and $50 respectively. It is significant that the payments to the principal witnesses begun at or about the time the motion for a new trial was made, and continued until both the motion for a new trial and the petition for disbarment had been concluded. Porcia, who appears to swear with equal facility on either side, now swears that all of his testimony before the referee was false, and Julian, who is said to have engineered both proceedings, has now quarreled with the company and swears that Robinson, the solicitor for the company, told him that McBride App. Div.] First Department, November, 1911. had been paid $2,500 for his report. Robinson does not deny this. I am disposed to think that both cases should be reopened. So far as concerns the order for a new trial we cannot of course vacate that upon new evidence not before the court on the appeal. We can I think, however, modify our order by adding a proviso that plaintiff may move for a reargument at Special Term upon new affidavits. So far as concerns the disbarment proceedings I think we should refer the petition for reinstatement to the official referee and ask the Bar Association to intervene and take such action as the evidence to be adduced may seem to require. INGRAHAM, P. J., MCLAUGHLIN, MILLER and DOWLING, JJ., concurred. In Nugent v. Met. St. R. Co., order modified as stated in opinion. Petition for reinstatement of respondent Oppenheim referred to official referee, as stated in opinion. Orders to be settled on notice. CHARLES GINSBERG, Respondent, . BERNARD FRIEDMAN, Appellant. First Department, November 3, 1911. Master and servant - contract of employment - performance to be to satisfaction of master - breach — charge — excusing breach of duty. Where a contract employing one to design garments for women provided that the designs shall be at all times to the entire satisfaction of the employer, and that he shall be the sole judge thereof, he is entitled to discharge the employee if in fact dissatisfied with his work. It is error to allow the jury to determine whether he ought to have been satisfied if in fact his dissatisfaction was real and not assumed in order to rid himself of the employee. In an action by the employee for breach of said contract, it is error to refuse to charge that the master may overlook the breach of duty by the servant hoping for reformation, but if disappointed and if the servant continues a course of unfaithfulness, the master may take into consideration his entire conduct in determining whether to discharge him. APPEAL by the defendant, Bernard Friedman, from an order of the Appellate Term of the Supreme Court, entered in the |