I concur in the views expressed by Presiding Justice Ingraham with respect to the construction and effect of the constitutional and statutory provisions relating to bribery; but not with respect to the evidence adduced against the defendant. I am unable to agree with the views expressed by Mr. Justice Clarke concerning the decision of this court in People ex rel. Dickinson v. Van de Carr (87 App. Div. 386), which, I think, under the guise of distinguishing that case, unduly limit, if they do not materially modify it. The opinion in that' case, unanimously expressed, gave a construction to the statutes against bribery which render them effective, as the public interests imperatively require they should be. I also agree with the presiding justice that the court did not err in charging that Robin was not an accomplice, and I concur in the views expressed by him on the law relating to accomplices in the commission of the crime of bribery. I deem it quite clear on the facts now before the court that Robin was not an accomplice, for he did not induce or attempt to induce -the • defendant to deposit further city funds with the Northern Bank, in which he owned a controlling interest, and of which he was a director and chairman of the executive committee, , or induce or attempt to induce the *634defendant to do anything. The action taken by him-in causing the Northern Bank to loan the Carnegie Trust Company $130,000, on the view of the evidence most favorable to the People, was coerced by a threat on the part of the defendant to withdraw the city’s funds then on deposit with .the Northern Bank, Robin made no application for the deposit of further city funds in his bank. If a crime was committed, Robin was the victim rather than the perpetrator of it, which brings him within the rules declared and applied in Dunn v. People (29 N. Y. 523), in which it was held that a female who submits to an operation for abortion is not an accomplice with the person who performs the operation, for the reason that she is the victim rather than the perpetrator of the crime.
I agree fully with the views expressed by Hr. Justice Clarke concerning the insufficiency of the evidence to'show that the defendant was guilty of the crime with which he was charged. The. defendant,: ascity chamberlain, had on deposit with the Carnegie Trust Company at the time upwards of $650,000. According to the testimony of Robin, upon which the conviction is based, the defendant was reliably informed that the Carnegie Trust Company required $130,000 to make good the reserve fund which it was .required to have on hand, and that unless its reserve was made good, it was likely to be closed by the Superintendent of Banks the following day. This would have endangered the city’s funds on deposit with the Carnegie Trust Company, and perhaps its funds to the extent of about $30,000,000 on deposit with other banks, which it was the duty of the defendant to protect. ' He had a perfect right to withdraw funds from the Northern Bank and deposit them with the Carnegie Trust Company for the protection of the city’s deposits with that company, and it was his duty to do so if he deemed it a proper course to pursue. Instead of doing this, it was entirely proper for him to request, as it is claimed he did, that the Northern Bank make the loan to the Carnegie Trust Company j and to assure that bank that he would maintain, or even increase the amount of- the- city’s funds on deposit with it, and as an inducement to that end, to inform the Northern Bank that if it did not do so he would withdraw the municipal funds. This is what Robin says the defendant induced-*635the Northern Bank to do. The transaction, therefore, was one which could have been lawfully had. But it is claimed that the acts of the defendant, which would have been lawful if actuated by a desire to protect the city’s funds, became criminal because in the interview with Robin he manifested a desire to have this done as a favor to Cummins and other friends of his connécted with the Carnegie Trust Company, and did not put the request on the ground that he desired to protect the city. He did not, however, say that he was not actuated in making the request by a desire to protect the city, or that he would not have made it but for the fact that Cummins and others connected with the Carnegie Trust Company were his friends. The act which he requested Robin to do, being a lawful one, I am of opinion that it should not be deemed felonious merely because he assigned improper motives therefor. Moreover, if in one view of the evidence the act would be the performance of official duty and innocent, and in another criminal, the presumption of innocence- and the reasonable doubt to which the defendant is entitled require that the innocent construction be placed upon his acts. I am of opinion that the evidence is insufficient to sustain the conviction which may be accounted for by the defendant’s unsuccessful effort to prove that he was not in his office at the time when Robin claims to have had the interview with him.
I agree, therefore, with Mr. Justice Clarke that the learned court erred in denying the motion duly made in behalf of the defendant for a direction of a verdict of acquittal; and, since the record indicates that the People have exhausted their proof and it is not claimed that they have further evidence, I vote for a reversal of the conviction and the discharge of the defendant, and the exoneration of his bail.
Judgment reversed and new trial ordered. Order to be settled on notice.