I am of opinion that the crime with which the defendant was charged in the former indictment is not the same as that with which he is charged in the second indictment.
The first indictment charged that one Gertrude Gutman, an employee of the copartnership firm of Moses Gutman & Son, falsely, unlawfully and corruptly altered and erased the account showing that the firm was indebted to the- defendant; and it charged the defendant with having been feloniously concerned “ in the commission of the said crime and felony by the said Gertrude Gutman,” and that he aided and abetted her in committing the same, and counseled, commanded, induced and procured her to commit the crime and felony consisting of said alteration of the books of said copartnership. There was in that indictment no charge that the alteration of the books made by Gertrude Gutman was made with intent to injure or defraud any one or that the defendant aided or abetted or counseled or advised or induced her to make the alteration with the intent of defrauding any one. The indictment constituted a simple charge of the alteration of the books of the *154firm by an employee, aided, abetted, counseled, advised and induced by the defendant. That indictment, therefore, was necessarily predicated on a violation of the provisions of the first subdivision 1 of section 889 of the Penal Law by Gertrude Gutman, the employee of the firm; and it was essential to the conviction of the defendant to show that Gertrude Gutman committed the crime of forgery in the third degree in violation of the provisions of said subdivision 1 of section 889 of the Penal Law, and that the defendant aided and abetted her in so doing. (Penal Law, §§ 2, 26, 889, subd. 1.)
It appeared upon the trial of the defendant under the former indictment that the alteration and erasure in the copartnership books by Gertrude Gutman, the employee of the firm, were authorized by one of the members of the firm, and upon that theory it was held that the crime of forgery in the third degree was not committed by her inasmuch as the provisions of said subdivision 1 of section 889 relates to alterations and erasures in copartnership books not authorized or directed by the firm; and that since there was no crime committed by the employee of the firm, as charged, the defendant could not be held guilty on the theory of aiding, abetting, counseling, advising or inducing acts by the employee which did not constitute a crime. (People v. Fish, 169 App. Div. 22.)
The second indictment clearly charges a different crime, in violation of the provisions of the last paragraph of said section 889 of the Penal Law, being the second subdivision 4 of that section (as added by Laws of 1912, chap. 342), in that with intent to defraud the creditors of said firm and to conceal from them and from other persons interested matters materially affecting the financial condition of the firm the defendant feloniously altered, erased and obliterated an entry in a deposit book of the firm showing an indebtedness from the firm to him. This is clearly a different crime, depending in no manner upon whether the members of the firm consented to such alteration or whether the same was made by an employee of the firm by direction of one of the members.
The order should, therefore, be reversed and the writ dismissed.
Dowling, J., concurred; Smith and Page, JJ., dissented.