The defendant was convicted of the crime of grand larceny in the first degree. The indictment, except the formal parts of it, upon which the conviction was obtained reads as follows: .
“ 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 diaries 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.”
At the conclusion of the trial a motion ivas made for a new trial upon the ground that the verdict was against the law and weight of evidence, and from the order denying the same and the judgment of conviction, the defendant- has appealed.
Upon the trial it appeared that upon the 11th day of June, 1896, the complainant, Charles II. Goodwin, a real estate broker, went to the office of the defendant, also a real estate broker, and there met him for the first time. During the course of an interview which then took place between them, Goodwin was informed by the defendant that he had for sale some 900 acres of land, situate in the State of New Jersey,' which the owners were willing to sell for $9,000, but which was worth much more; that he had a party to whom he could immediately sell the land for a much larger sum than the price asked, and if in a position-to do so he could realize several thousand dollars in profits; that he could not personally make the purchase and take the title inasmuch as he represented the owners, and he suggested as a way.of obviating the difficulty that Goodwin make the purchase and take the title and that whatever *345profits were realized by a resale be divided between them. The •defendant also stated that if Goodwin would make the purchase all the money that it would be necessary for him to advance would be $200, since the party to whom the resale could be made would pay cash. He also made other statements as to the actual value of the land, its location and the timber upon it. At the conclusion of the interview, Goodwin said he would think the matter over and let the ■defendant know whether he would make the purchase or not on the following day. On the following day he returned to defendant’s office, notified him that he had decided 'to make the purchase and then paid the $200 which the defendant had stated the day before it would he necessary for him to advance. The payment was made by a check payable to the order of defendant, which defendant immediately, in 'the presence of Goodwin, indorsed, payable to the order of the American Express Company. The parties then separated, Goodwin returning to Albany, where he resided, and nothing further was heard from defendant until two days later, when Goodwin received a telegram from him saying: “ Delay dangerous; come first train; bring thousand dollars cash; greater bargain ; timber land; wdll explain; answer.” Goodwin answered : “ Telegram received. Will call at your office Monday.” On Monday Goodwin did call and the explanation given by defendant of his telegram was that under an arrangement which he had recently made with the owners of the land, the purchase price of it would be reduced from $9,000 to $6,000, provided a further cash payment of $1,000 was immediately made, and he was fearful if there was any delay in making this payment that the owners would change their minds. The terms and conditions of the sale were again .discussed, the defendant, according to Goodwin’s testimony, saying: “ That there would have to be $800 paid in thirty days and a two thousand mortgage given at 5 per cent, and there was already a mortgage on the property at $2,000, which would make .the $6,000. The $1,200 in this case would be all that would be required, because he had this party that was going to take the property and he would turn it within thirty days; so it would not be necessary to pay out any more money than the $1,200 if I would advance the $1,000 at this stage. I left him and told him I would see him the next day.” The next *346day Goodwin returned and liad a further discussion as' to the transaction, the result of which was .that he then decided to and did advance the $1,000 required, and this is the sum which it is alleged the defendant stole from him. . Before Goodwin, however, advanced the $1,000, he drew an agreement between himself and the defendant which recited that he (Goodwin) had purchased the land in question and that he was to pay to the defendant one-half of all the profits realized on a resale of the same. When he paid the $1,000 to the defendant he took from him a receipt which reads as follows:
“New Tobe, June 16th, 1896. .
“ 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.
“P. H. SUMNER.”
By agreement the owners of the land, Johnson & Smith, were, sent for by defendant, and on the following day a formal contract of sale was entered into between them and Goodwin. This contract provided that the owners were to sell to Goodwin the land for .$6,000, which, according to the terms of the contract, was to be paid, as follows: “ One thousand two hundred dollars on the execution hereof ($1,200), eight hundred dollars on or before thirty days from the date hereof ($800),” and $2,000 by giving a mortgage on the premises,' and the remaining $2,000 by taking the premises subject to a mortgage for that amount already thereon.. The contract further provided that the owners on receiving the payments at the time and in the manner specified were to execute and deliver to Goodwin a proper deed containing a general warranty, etc. This contract was, according to the testimony of Goodwin, executed in duplicate, one copy being delivered to and thereafter retained by .him and the other left with the defendant. Two days later Goodwin, in company with one of the owners, examined the land, and at the conclusion of such examination he requested that a deed be produced at Sumner’s office on the following Monday, which was the day which had previously been agreed upon. And the day after the examination he met the defendant, and in response tó an inquiry as to how he “ found things,” he replied : “ I told him that *347there was a large tract of land, &c. I did not give him any idea but what I was satisfied as far as that time was concerned.” The first intimation that defendant had that Goodwin was not satisfied was when he and his attorney several days later called and asked him if “ he had paid any money over.”
It also appeared upon the trial that Smith & Johnson-, prior to the contract with Goodwin, had entered into a contract to sell the same land to one Lancaster for $3,500, and in order to make the contract with Goodwin they authorized the defendant to retain for the purpose of procuring a cancellation of that contract and for his commissions for making the sale to Goodwin the first $1,200 paid by Goodwin, and before they entered into the contract with Goodwin they acknowledged having received from the defendant the sum of $1,200, “ being sum paid on account of contract made by C. H.. Goodwin for 900 acres of land in Sussex county, N. J., for $6,000.” It also appeared that the defendant did in fact procure a cancellation of the Lancaster contract.
I have thus referred at length to the facts established upon the trial for the purpose of showing that the conviction cannot stand unless we are prepared to ignore not only the provisions of the Oode of Criminal Procedure relating to an indictment, hut also the-conclusion of the Court of Appeals relating to the same subject. The Code of Criminal Procedure (§§ 254, 273, 274, 275) provides that an indictment must not only specify the crime, but must also contain a statement of the act which the defendant is alleged to have committed constituting the crime. The purpose to be accomplished is manifest. It is to notify a defendant in advance of the trial of the act which the People allege has been committed by him and for which he is to be tried. The indictment here, it will be observed, charged the defendant with the crime of grand larceny. The act therein stated is that the defendant “ feloniously did steal, take and carry away” the $1,000 therein • mentioned. This was the act charged, and this- was what the jury found the defendant did, and the record before us fails to disclose any evidence to prove the act or sustain the finding. The most that can be claimed — if, indeed, that can—giving to the evidence the most favorable consideration possible, is that the defendant obtained possession of the money by means of false and fraudulent representa*348tions or statements as tó the value of the land, the opportunity to resell and the profits to be realized. But this was not the act charged in the indictment. The act-charged was larceny 'as defined at common law, which cannot be sustained by proof of the procurement of property by false and fraudulent representations. This is precisely what the Court of' Appeals held in People v. Dumar (106 N. Y. 502). In- that case the indictment charged that the • defendant “unlawfully and feloniously did steal, take and carry away” certain property therein described. The proof showed . that the possession of the property was obtained by false and fraudulent representations. In reversing the judgment of conviction the Court of Appeals, by Danfobth, J-, said: “The case he presented and the evidence he offered all tended to show that the defendant did not commit the ‘act charged in the indictment, but did commit the act described in the second alternative of the statute, viz.: ‘ obtaining property from the possession of the true owner by color or aid of false representations or pretense, or a false token or writing.’.' * * "' The accused could not fail to understand, from the indictment, that he was charged with the crime of grand larceny. In that respect the Code was complied with. It stated also a particular act as constituting the crime. In that respect, also, the Code was complied with. The difficulty is that the act stated was not proven, and that the act proven was not stated.”
Here the indictment charged, as we have already seen, that the ' defendant “feloniously did steal, take and carry away ” the $1,000 referred to, and the record shows that Coodwin- parted with the possession of his money by reason of false and fraudulent representations. The act stated in the indictment, therefore, was not-proven, and the act proven was not stated in the indictment. This brings the case directly within the rule laid down in the Dumar ' case, and necessitates a reversal of the judgment.
But it is said the conviction can be sustained because the defendant obtained possession of the money for a special purpose, intending at the time to and thereafter did appropriate it to. his own use and not to the spécial purpose for which it was delivered to him.. It is undoubtedly true that, to- constitute larceny as defined at common law, it is not necessary that the property stolen should have been taken from the possession of the owner by a *349trespass. If one obtains possession of property for a special purpose by fraud or false pretenses, intending at the time to appropriate it to his own use, and thereafter does appropriate it to his own use and not to the special ¡purpose for which he received it,, it has been held that he is guilty of common-law larceny. (People v. Laurence, 137 N. Y. 517; People v. Hughes, 91 Hun, 354.) But what was the special purpose for which this money was delivered \ It was to purchase certain land,, and it was so applied.' The evidence is overwhelming that Goodwin, when he delivered the money to defendant, intended to and did pass the title to it. (1) The agreement as to profits, drawn by himself at the time the money was paid, recited : “I hereby agree to give and pay over to P.-TI. Sumner or order, or his assigns, one-half of all that a certain tract of land containing 900 ' acres * * * purchased by me may sell for.” (2) The receipt which he took from defendant shows the payment of the money “ on account of purchase.” (3) The contract of sale declares that the money was paid to apply on the purchase. (4) The conduct of Goodwin after he had examined the land shows the same thing. And it does not change the situation or the character of the transaction because Goodwin testified upon the trial: “ I told him that I would deposit a thousand dollars 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 title was all right before any money was paid over.” The agreement, the receipt and the land contract above referred to all show that this statement is not true, but if'true it does not aid the People. The most, that can be claimed froth the statement is that Goodwin wanted the money held until he examined the property and ascertained whether the-title was good or not. But he examined the land, and after such examination expressed himself at least so far satisfied with it as tO' request the owners to produce a deed at defendant’s oEce at the time agreed upon; and he did not then object and never has, so far ; as appears from the record before us, objected to the title. Not only this, but after he had made the examination and had concluded to have nothing further to do with the purchase, when defendant asked him how he “ found things” he did not manifest dissatisfaction of any kind, say nothing of demanding a return of his money. This of itself is suEcient to characterize the transaction and show" *350that the money was, not deposited for a special purpose, but was paid to apply upon the purchase price as all the other evidence in the case indicates. It is unreasonable to suppose that one who had deposited money with another for a special purpose would not at the first opportunity after having learned that he has been deceived, or that the money was not to be used for the special purpose for which he deposited it, demand back his money rather than seek, as the complainant did, the aid of an attorney to obtain the possession before there had even been a refusal to return.
. I am of the opinion, therefore, that the trial court erred in denying'defendant’s motion for a new trial. A trial court is authorized to grant a new trial when the verdict is contrary to law, or clearly against evidence. (Code Crim. Proc, § 465, subd. 6; People v. Smith, 6 App. Div. 234.) This verdict is both, and I am for this reason unable to concur in the opinion of Mr. Justice Patterson. I think the judgment should be reversed and a new trial ordered.
Judgment affirmed.