In re Eannace

Proceedings remanded to the Official Referee to hold such further proceedings as he may deem advisable and to make additional and, if necessary, new findings in accordance with the following memorandum: The sole charge made against respondent was a violation of canon 44 of the Canons of Professional Ethics. It does not appear from the report of the Official Referee that this issue has been passed upon. Implicit in the charge was a factual issue presented by the diametrically opposed testimony of witnesses as to what transpired between attorney and client in regard to filing a notice of appeal and the prosecution thereof. Bearing upon this issue is the letter of August 29, 1956, from the attorney to the prisoner, which was received in evidence but not referred to in the report and upon which adequate cross-examination was not had. The Referee saw and heard the witnesses but has only inferentially made findings as to the credibility of some of them and no direct finding as to the stated charge. We conclude that in the interests of justice the proceeding should be remanded to the Referee to hold such further proceedings as he may deem advisable and to make additional and, if necessary, new findings in accordance with this memorandum. All concur. Present-—McCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.