jury unknown; that in truth and in fact the company had not theretofore made and effected any such insurance, and that it had not be come liable to pay such loss, etc.

Second, That on Dec. 10, 1883, defendant at the city of Buffalo, feloniously and willfully, with intent to defraud the Thames & Mersey Marine Ins. Co., Limited, did draw upon Angus J. McDonald, the general agent of the company, and duly authorized to pay the same from its money in case the drawer was entitled to draw upon McDonald as such general agent, for the payment of the same, a draft, in the name of Crosby & Dimick, general insurance agents, etc., for $1,975 payable to their order as such agents, when in truth and in fact defendant was not, nor was his firm of Crosby & Dimick, lawfully entitled to draw as the drawer for such sum, as defendant well knew, and that he did willfully, feloniously and unlawfully and with intent to defraud the company by color and aid of such draft obtain from it such sum of money, etc.

Third, That on Dec. 10, 1883, at the city of Buffalo, defendant feloniously and with intent to deprive and defraud the Thames & Mersey Marine Ins. Co. of its property and appropriate the same to his own use, etc., did secrete, withhold, take, steal and carry away from its possession and appropriate to his own use, etc., $4,975 of the money and personal property of the company, etc.

Defendant demurred to the indictment, the demurrer was over

ruled and defendant pleaded not guilty.

On the trial it appeared that during the year 1883 defendant and Thomas Crosby were partners in the insurance business at the city of Buffalo; that they were general agents for inland marine insurance for the Thames & Mersey Marine Ins. Co., Limited, of England, and the Union Ins. Co., of Philadelphia; that Crosby was such agent of the insurance company of the State of Pennsylvania and defendant was such agent of the Continental Ins. Co. of New York. The firm carried on the business of the agency of these four companies. This business was wholly that of inland marine insurance. The firm established local agencies with the approval of and for the companies respectively, and had the power to apportion risks taken by any one of them by re-insurance between the companies within certain prescribed limits, as to all except the Continental, which left it wholly to the discretion of its Buffalo general agency. On Oct. 24, 1883, the local agents at Detroit of the Union Ins. Co., insured a cargo of wheat on the schooner James Wade, consigned to Buffalo, for $10,500, and reported it to defendant's firm, who re-insured $7,000 of the amount in the Continental. This was done in the usual manner by entry upon such report and in the register kept for such purpose in the office of the firm. This vessel and cargo never reached Buffalo, but sunk and were lost in the lake. On the 16th or 17th of Nov. the re-insur

ance in the Continental was erased, and $5,000 was entered as re-insured in the Thames & Mersey. The proofs of loss were afterward furnished to the Union Co. and it paid the loss through defendant's firm and the firm thereafter drew upon McDonald, the general manager in New York City of the Thames & Mersey, for $4,975, the amount so entered as re-insurance by it less the discount allowed for early payment. This draft was accepted and paid by him Dec. 17, 1883. The charge in the indictment is founded on the alleged fact that defendant illegally caused such entry of re-insurance after he was advised of the loss of the schooner, and obtained such amount of money from McDonald with intent to defraud the company.

Spencer Clinton, for applt. Edward W. Hatch, Dist. Atty., for respts.

Held, That the indictment contains the statutory elements requisite to bring the offense within that of grand larceny, Penal Code, §§ 528, 529, and for the purposes of the question of its sufficiency on a demurrer it is enough that any one of the counts is sufficient. 56 N. Y., 95; 4 Eastern Rep., 897. Each of the three counts contains a statement of the crime of larceny as defined by statute, and is sufficient for the purpose of pleading, within the meaning of the statute. Code Crim. Pro., §§ 275, 276, and §§ 283, 284 and 285.

The indictment may be construed as charging one crime only. Code Crim. Pro., § 279. The crime

alleged in the several counts is larceny alleged to have been committed the same day, in having taken and stolen the moneys of the Thames & Mersey Ins. Co., Limited, amounting to and of the value of $1,975. The statements in the first and second counts are of the crime committed in a different manner or by different means. The first count is within § 528 and the second within § 529. It is not necessary to determine here whether the third count would support a conviction on the facts which were established by the evidence.

That the refusal of the court to direct the people to elect upon which count they would proceed or ask for a conviction was not error. 70 N. Y., 38; 75 N. Y., 487; Code Civ. Pro.. § 279.

That the indictment sufficiently advised defendant of the crime of which he was charged, and the description of the subject of the larceny as larceny as "money of a kind and description to the grand jury unknown, etc," was sufficient in view of the allegation that a more particular description could not be given. given. 16 N. Y., 344.

That while the evidence justified the inference that the schooner was lost at the time of the re-insurance in the Thames & Mersey, the important question is whether defendant was apprehensive, understood and believed that the vessel was then lost, as while a valid contract of marine insurance may be entered into after the loss of the subject of insurance, its validity depends on the good faith of the parties to the contract,

and no agency, however general in its terms, would be deemed to embrace the power to insure property after knowledge of its loss. That, to constitute the crime of larceny with which defendant is charged, it was necessary that the re-insurance be illegal. If the act was within the power of defendant or of his firm, as general agents, to do it, the alleged offense could not arise out of obtaining from it payment of the amount it was legally liable to pay, whatever may have been the motive of defendant in so charging the company with liability. The illegality and invalidity of such re-insurance is the foundation of the charge in the indictment. Hence the charge of the trial court, that "the question whether the insurance was legal or illegal by the re-insurance in the Thames & Mersey is of no consequence," was error, and a new trial must be granted unless it is obviated by other instructions to the jury.

Later the court charged, that, "the question of fact for the jury to determine is whether the insurance was effected in the Thames & Mersey after notice came to defendant of the loss of the vessel. If the insurance was effected after such loss and defendant knew it, and with an intent and purpose of defrauding this company in which the re-insurance was made for the purpose of benefit of one company in preference to another, or for the agent's own benefit, or both with that intent, a felonious intent, then the offense charged in the indictment was made out, otherwise not."

Held, That the proposition so charged seems to make the conviction of defendant depend upon the fact that the re-insurance in the Thames & Mersey was made after the loss of the vessel, and after knowledge or notice to defendant of such loss, which in the view here taken rendered such re-insurance invalid. This charge embraces fully the requisite fact in that respect, but defendant had the right that the jury be distinctly advised that they could not convict him under the indictment unless the re-insurance was invalid, whatever may have been his intent in making it. And while the whole charge may be considered in aid of the interpretation of its several parts, yet when an important proposition is erroneously stated to the jury and not distinctly withdrawn it does not necessarily follow that it may not have a prejudicial effect, although a rule complete in itself for the action of the jury is properly charged. 53 N. Y., 165; 55 id., 579; 45 id., 285; 14 J. & S., 238; 37 Hun, 519.

The court was asked to charge that if defendant re-insured the vessel after he had notice of the loss, believing that he had a right to make such re-insurance, no crime was committed by him.

Held, That such belief is not inconsistent with an intent to defraud that company, and in case of such intent without any right to the act his belief would not protect against the charge of the crime. crime. The question of intent would still remain for the jury, and as the absence of intent is

embraced in the request there was no error in denying it.

Held also, That the obtaining of the money was the consummation of the offense, but a necessary element of it was also the false representations in the color and aid of the draft with the intent to defraud. The acts which produced the apparent liability were done in Buffalo, and there were made and forwarded the representations, and the draft on which the money was procured. He by this means spoke at Buffalo to McDonald in New York and received his response in Buffalo, and this consummated the offense within & 134 of the Code of Cr. Pro. As some of the acts constituting or requisite to the offense occurred in the city of Buffalo, this case was within the jurisdiction of the Su perior Court of that city. The courts of the city of New York also had jurisdiction of the offense. 3 Den., 190; 1 N. Y., 173.

McDonald, the general manager of the Thames & Mersey, was sworn as witness for the prosecution. On his cross-examination he testified that he had sworn to some of the complaints in civil actions referred to. He was then asked if he had sworn to certain things particularly mentioned in reference to the loss of the James

Wade, its loss and the time of loss,

and in reference to the risk taken thereupon and the re-insurance. The People offered the copy complaint and "the whole of it" in evidence, objection to which was overruled and exception taken.

The court in overruling the objec

tion remarked that it was "put in evidence for the purpose of showing what he testified to,” and that it could not be "evidence upon any other point." The complaint contained thirteen alleged causes of action, and some of them were founded on alleged grave charges of misconduct and fraud and bad faith on defendant's part in the business of the agency of his firm for the Thames & Mersey, and only small parts had reference to the James Wade, her loss, and the insurance and re-insurance of her cargo.

Held, That this paper as a whole was not competent evidence and only such parts of it were admissible as referred to his cross-examination, and while the ruling qualified the purpose for which the pleading was received in evidence, it did not restrict the reception to any particular portion less than the whole of it, and the qualification of its purpose as evidence wholly defeated its effect as such upon the jury, or it produced an impression upon their minds to the prejudice of defendant. 19 N. Y., 299; 47 id., 186. When incompetent evidence may have a tendency to arouse the prejudice of the jury it cannot be deemed harmless. 54 N. Y., 334.

This rule applies with even greater force in criminal cases than

in civil.

Judgment and conviction reversed and new trial granted.

Opinion by Bradley, J.; Smith, P.J., Barker and Haight, JJ.,

concur.

An administrator having purchased a monument for his intestate, the debt is to be regarded as a part of the funeral expenses, and becomes a charge on decedent's estate.

Appeal from order of Surrogates Court, directing the sale of the real estate owned by Ashbel H. Arnold at the time of his death, for payment of his debts. The order also provided that out of the avails of such sale petitioners be allowed their costs and expenses of the proceeding, which were adjusted at $209.38. Petitioners' claim was the amount of the price of a tombstone sold by them to the administrator in his representative capacity and erected in memory of the deceased. The estate was valued at between $10,000 and $15,000.

Daggett & Norton, for applts. Bingham & Joslyn, for respts. Held, That there is no support for the contestants' objection that the surrogate failed to acquire jurisdiction of the subject matter because the petition is defective for the reason that it does not set forth the facts required by § 3, Chap. 6, Tit. 4, of the second part of the Revised Statutes. That section applies only when proceedings for the sale of the decedent's

Vol. 25-No. 11.

executor or administrator. When a creditor applies for a sale of the lands for the same purpose, the creditor's petition must comply with Chap. 460, Laws of 1837, as amended by Chap. 172, Laws of 1843, and Chap. 298, Laws of 1847. 3 Rev. St., 196, § 59, 5th ed. The petition here avers all the necessary facts, and the surrogate acquired jurisdiction. 40 Barb.,

417.

The debt for the monument is to be regarded as part of the funeral expenses, and it becomes a charge on decedent's estate. 21 Hun, 110; 25 id., 4; 59 N. Y., 574; Chap. 267, Laws of 1874.

So much of the decree as purports to dispose of the question of the costs of the proceeding is not reviewable on this appeal. The expenses of the proceeding are to be paid out of the avails of the sale, whether the costs be taxed under the provisions of the Revised Statutes or under the Code of Civil Procedure. All the avails of the sale must be brought into court and distributed under an order thereafter to be made. The question of costs is not up on this appeal, 63 Barb., 297; and so much of the order as awards costs to petitioners and fixes their amount should be stricken therefrom, as the surrogate had no power to consider and determine that question prior to deposit of the proceeds of the sale with the county treasurer, and before decree of distribution. 63 Barb., 63 Barb., 297; Code Civ. Pro., §§ 2786, 2563, 3347, subd. 11. See 4 Redf., 325.