I concur in the opinion of my brothers Kruse and De Angelis. In addition I have the following to suggest in reference to the objection now urged by defendant’s counsel upon this appeal for the first time to the admissibility of defendant’s testimony in the so-called discovery proceeding, based upon section 2443 of the Penal Law. That section is as follows: “Noperson shall be excused from testifying, in any civil action or legal proceeding, to any facts showing that a thing in action has been bought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime. But no evidence derived from the examination of such person shall be received against him upon a criminal prosecution.” Nothing in the testimony of defendant in the discovery proceedings shows or tended to show that the bonds defendant has been convicted of stealing had been bought, sold or received contrary to law. It was conceded that he received *835these bonds as agent for Mrs. Newcomb, that his custody was her custody, and that these bonds were in his possession at the time of her death. A few weeks after her death and on October fifteenth he committed the larceny of which he has been convicted by feloniously converting the bonds to his own use and delivering them to a broker who sold them for his account. The bonds were not, I think, sold contrary to law within the intent and meaning of this section. I think the conversion was complete at the time he delivered the bonds to Greene, the broker.
This statute should be construed with reference to its origin and history, in view of the purpose for which it was- originally adopted. It first appears in chapter 259 of the Laws of 1818, entitled “An act to prevent abuses in the practice oflhe law, and to regulate costs in certain cases.” This act (§ 1) prevents attorneys from buying bonds, promissory notes, bills of exchange or other choses in action for the purpose of commencing actions thereon. Section 2 gives a defendant sued upon a chose in action so purchased by attorney a right to examine the attorney or the plaintiff on the trial, and provides “that any evidence derived from the examination of any such attorney or counsellor, shall not be admitted in proof on any criminal prosecution against such attorney or counsellor, for a violation of the provisions of this act.” This statute was incorporated in the original Revised Statutes as a part of article 3 of title 2 of chapter 3 of part 3, which article is entitled, “Of the Officers of Courts of Record, their Duties, Privileges and Liabilities.” Section 82 of this article (2 R. S. 289) is as follows: “No evidence derived from the examination of any such attorney, solicitor or counsellor, shall be admitted in proof, on any criminal prosecution against him, for violating any of the provisions of this article.” This section was in substance incorporated in the Penal Code adopted in 1881. The original draft of the Penal Code was prepared by David Dudley Field and others, commissioners, in 1864, and reported to the Legislature in 1865. It was later revised by David Dudley Field and others in 1819 and was enacted as chapter 616 of the Laws of 1881. As originally drafted by the commissioners in their report to the Legislature in 1865, the present section was numbered section 200, *836and was as follows: “No person shall be excused from testifying, in any civil action, to any facts showing that an evidence of debt or thing in action has been bought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime. But no evidence derived from the examination of such person shall be received against him upon any criminal prosecution. ” In their notes the commissioners refer to the above-mentioned article of the Revised Statutes and say: “The sections of the Revised Statutes contain provisions, in detail, enabling a defendant to procure the testimony of the guilty party in aid of a defense setting up that the purchase of the demand in suit was contrary to law. Since the statute enabling either party to a suit to call his adversary as a witness these special provisions are no longer necessary to be retained.” Also, “ The Commissioners have retained in the Penal Code the various provisions of the existing law whereby, in respect to particular crimes, the privilege to refuse to testify is removed; e. g., in respect to buying demands for suit; duelling, &c. But they have added no new provisions of this character.” Thus the effort of the commissioners was simply to preserve the existing statutes in this respect. In the original Penal Code this statute became section 142 in practically the same form. In Chappell v. Chappell (116 App. Div. 573) this court had occasion to consider the history and interpretation of the then section 142 of the Penal Code. That was an appeal from an order of the Monroe Special Term directing a defendant to appear before a referee to answer as to his knowledge concerning certain bonds and securities belonging to the estate of James W. Chappell, deceased, of which the plaintiff was the administrator, which bonds or securities it was alleged had been fraudulently obtained by the defendant from the deceased and concealed and withheld from plaintiff. The order was made on plaintiff’s application to examine the defendant for the purpose of enabling the plaintiff to prepare his complaint. Defendant appeared before the referee, but refused to answer the questions on the ground that it might tend to incriminate him. It was con-, tended on appeal that section 142 of the Penal Code compelled defendant to give the testimony and afforded him immunity. *837Mr. Justice Spring, in writing for this court, refers to the history of this section 142, and says that it and the associated sections are a substitute for the provisions of the Revised Statutes pertaining to the purchase of claims by attorneys, justices and constables with a view to their collection. He refers to the above quoted note of the commissioners and says that the section does not assume to abrogate section 837 of the Code of Civil Procedure and should not be extended beyond its restricted signification.
In view of the origin of this act, I think it should be construed to apply only to cases of the purchase, sale or receipt of things in action contrary to some statutory provision against it, not to a case where a thief sells the property he has stolen.