FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. ance to the sheriff for the purpose of enabling him to make that levy effectual was, I think, a proper exercise of the power of the court over the property held by it for the purpose of enabling its judgment to be made effectual. I think, therefore, that the order appealed from was right and should be affirmed, with costs. Order reversed, with ten dollars costs and disbursements, and motion to confirm referee's report granted, with ten dollars costs. 33 338 a161a652 33 338 64 455 64 456 64 460 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, 2. PERRIN Larceny-proof of false pretenses is insufficient to establish it - when a copartnership is not shown to exist as to money obtained thereby. An indictment for grand larceny charging that the prisoner "feloniously did MCLAUGHLIN, J., dissented. APPEAL by the defendant, Perrin H. Sumner, from a judgment of the Court of General Sessions of the Peace of the city and county of New York in favor of the plaintiff, rendered on the 3d day of App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. June, 1897, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant's motion for a new trial made upon the minutes. Ambrose H. Purdy, for the appellant. Charles B. Le Barbier, for the respondent. PATTERSON, J.: The real question involved in this appeal relates to the sufficiency of the proof to sustain the indictment. The appellant was convicted of the crime of grand larceny in the first degree upon an indictment containing two counts. On the trial the second count was withdrawn and the case then stood upon one which charged a larceny in these words: "That said Perrin H. Sumner, late of the City and County of New York aforesaid on the 16th day of July, in the year of our Lord one thousand eight hundred and ninety-six, at the City and County aforesaid, with force and arms, the sum of one thousand dollars in money, lawful money of the United States of America and the value of one thousand dollars of the goods, chattels and personal property of one Charles H. Goodwin, then and there being found, then and there feloniously did steal, take and carry away against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity." It is urged by counsel for the appellant that the proof made on the trial of the cause did not establish the particular charge laid in the indictment of common-law larceny, but only that the prisoner was guilty of procuring money by false pretenses, and inasmuch as he was not indicted for the latter offense the conviction cannot stand. It has been explicitly decided in this State that an indictment for larceny at common law cannot be upheld by proof only of the procurement of property by false or fraudulent representations. (People v. Dumar, 106 N. Y. 502.) In that case, the court, by DANFORTH, J., said: "In order to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense could not be confounded with it. In either case the property may have been obtained by artifice or fraud, but if in one the owner intended to part with his property absolutely and to convey it to the defendant, but in the other intended FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not." It was, therefore, uniformly held that if a person through the fraudulent representations of another delivered to him a chattel intending to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses. In the case of People v. Hughes (91 Hun, 358), the court said by Van Brunt, P. J., that "it is also equally well settled that to constitute a commonlaw larceny it is not necessary that the property stolen should be taken from the possession of the owner by a trespass, but if a person obtains possession of the property from the owner for a special purpose, by some trick, device, artifice, fraud or false pretense, intending to appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny, and so it has been repeatedly held. (People v. Laurence, 137 N. Y. 517, 522.) The distinction between the two cases being that the owner of the property stolen, in the case last cited, did not part with the possession of it with the intent of conferring title to the property upon the party charged with the larceny." In the case of People v. Laurence (supra) it is pointed out that neither under the Penal Code nor at the common law was it essential to constitute the crime of larceny that the property should have been taken from the possession of the owner by a trespass, "but if a person obtains possession of property from the owner for a special purpose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to his own use, and he subsequently does appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny, and so it has been repeatedly held. (Smith v. People, 53 N. Y. 111; Loomis v. People, 67 id. 322; People v. Morse, 99 id. 662.) In such a case it is essential for the People to show not only that the person obtained possession of the property in that way, but that he did it animo furandi, with the intention at the time of subsequently appropriating it to his own use." It is very plain that upon the count of the indictment upon which this prisoner was tried it was competent for the prosecution to give evidence of larceny by trick and device; and according to all the cases the test of the sufficiency App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. of the proof to sustain the charge in the indictment is, did the complainant Goodwin intend to pass title to the $1,000 mentioned in the indictment, or did he give that sum of money into the possession of the defendant for a special purpose to be applied to that purpose only, and did the defendant, instead of so applying that money, appropriate it to his own use? An examination of the evidence adduced upon the trial establishes each of the facts necessary to the maintenance of the charge. That the defendant prepared and executed an adroit and somewhat complicated scheme for obtaining the complainant's money by exciting his cupidity and inducing him to become a party to a transaction from which a large profit was promised; and that the intent of the defendant was merely to get from the complainant the $1,000 that he might keep it for himself, is too plain for contradiction. It is immaterial that the defendant's acts in consummation of his purpose were of such a character as to constitute contract relations in legal form between him and the complainant. The trick or device was none the less a guilty act because its accomplishment was sought through lawful forms. The defendant was a broker seeking to negotiate a sale for his principals of land in New Jersey. That he falsely represented to the complainant the condition and value of that land is uncontradicted. That he solicited the complainant to purchase the land under a representation that he had an arrangement made by which it could be transferred to another party for many times the price which the complainant would pay is also uncontradicted; that is to say, he offered the property to the complainant at $9,000, declaring that he had another person to whom it could be immediately resold at the price of $25,000; and at the same time he sought to make an arrangement with the complainant by which the profits of a resale should be divided between them. It is apparent that he had no such purchaser ready to pay $25,000; but, on the contrary, the only third party in any way standing in the relation of an actual or nominal purchaser was one Lancaster, with whom the defendant had negotiated or made a contract for the sale of the property at $6,000. The complainant had paid $200 to the defendant on the 12th of June, 1896, on account of the purchase price of $9,000. On the fourteenth of June the complainant, being in Albany, was summoned by a telegram from FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. the defendant to New York, and requested to bring with him $1,000, which is the amount mentioned in the indictment and the sum the defendant wished to get into his possession. On the complainant reaching New York he was told by the defendant that a man named Lancaster had seen the owners of the property, who, upon the payment of $1,000, would reduce the price from $9,000 to $6,000. The complainant asked the defendant if he had to pay Lancaster any money on account of the transaction, and he said, "No, not a cent. He does it out of friendship for me. I may have to give him a new hat" or a dinner. The representation made by the defendant was that the $1,000 was to go to the owners of the land. On the seventeenth of June the $1,000 was delivered to the defendant, the uncontradicted testimony of the complainant being that he told the defendant he would deposit $1,000 in his hands, "provided he would not pay it to anybody until I told him, as I wanted to examine the property and see that the time was all right before any money was paid over to anybody; and he said, 'All right, I will agree not to pay it over to anybody until you say;' and I gave him a thousand dollars in bills." That $1,000 was never paid by the defendant to any one so far as appears. He declared to the complainant that he was to pay it to the owners of the property. Their testimony shows that he declared to them that he was to pay it to Lancaster. When the complainant gave the defendant the money on the seventeenth of June, a receipt dated the day before was given by the defendant, which is as follows: "Received from Chas. H. Goodwin one thousand two hundred dollars, being on account of purchase of 900 acres of land in Sussex county, N. J., as per agreement. Price, six thousand dollars; $2,000 cash and $4,000 in mortgage on said lands." It is true that, at the time this receipt was given, a certain agreement had been made between the complainant and the defendant respecting the division of profits between them upon a resale of the land. The complainant agreed to give and pay over to the defendant or his assigns onehalf of all that the land might sell for; that is to say, one-half of all sales of timber made from the land, and one-half of all the profits on the sales of land that should be made, such profit to be ascertained after deducting the cost of the land and expenses. The promise of the defendant that he would not part with the |