I am unable to agree with my associates in reversing the judgment in this case. I think the charge of the trial justice that the payment of the $2,440 by defendants to Dollard & Rosoff men*36tioned in the indictment (part of an aggregate of $19,360 taken from the city treasury and paid to the same people) was improper and unlawful; that the defendants had no right to make the payment; that it was money belonging to the city and that it was not paid out according to any lawful means or for any lawful purpose, was entirely correct and based upon the testimony of the defendants who took the witness stand in their own defense. Aside from the fact that the charge to the jury in this particular was not excepted to by the learned and experienced counsel for the defendants, I do not see how there can be any question as to the propriety of the instruction on the evidence. The money was in the city treasury; it was part of the proceeds of a public sale of bonds by the city conducted pursuant to law. Dollard & Rosoff, in writing, bid par for $484,000 of the bonds offered. There were other bidders. The bonds were awarded to Dollard & Rosoff by resolution entered on the minutes of the city council. I understand that a majority of my associates are of opinion that whether the transaction between the city and Dollard & Rosoff was a sale of the bonds to them at par for which they owed the city $484,000, should have been submitted to the jury. Again no exception was taken to the charge in this particular, nor can I find in the record anything to indicate that the defendants or their counsel questioned the fact. Indeed as I read the very careful and eloquent closing address of defendants’ counsel to the jury, the validity of the sale was conceded, that the written bid duly accepted by the city council on its minutes constituted a valid, enforcible contract between the city and the bidders. I think there can be no dispute about it on the evidence. As matter of fact, Dollard & Rosoff paid into the city treasury the sum of $484,000 for these bonds. The city received the money — it was in the cash drawer. The defendants conceded it because they say that they made a private agreement with Dollard & Rosoff that they would protect them against any loss which the purchasers might sustain in disposing of the bonds so purchased by them. All this is proven out of the mouths of the defendants. The defendants took out of the cash drawer of the city $19,360, of which the sum of $2,440 mentioned in the indictment was part, and paid this money to Dollard & Rosoff. This was not done by any direction of the council; there was no entry of the alleged private agreement or of the payments made upon the minutes; it was in violation of the express provisions of the city charter and of the ordinances of the city, providing that none of the city’s money should be paid out without proper-voucher and entry made upon the city’s books. It was not entered on the city’s books. As the learned justice properly charged the jury without exception *37or request to charge to the contrary, it was a payment of the money belonging to the city of Long Beach to Dollard & Rosoff, to whom it did not belong. It was not necessary that defendants should put the money in their own pocket or that they should derive personal benefit from the transaction. Taking the money of the city, the true owner, and paying it or appropriating it to the use of any person other than the true owner constituted the crime of larceny. (Penal Law, § 1290.) This is so in the case of any person wrongfully appropriating money which does not belong to him, and it is peculiarly applicable in the case of money belonging to municipal corporations. Where a public officer appropriates money of a city to his own use or to the use of any person not entitled thereto, without authority of law, or where such officer willfully audits or pays a false claim or demand or by any other means wrongfully pays out money in the possession of the city, the law declares that he is guilty of a felony. (Penal Law, §§ 1864,1865.) Can there be any question on the defendants’ own evidence that this money was taken by them out of the city treasury and paid to Dollard & Rosoff without warrant or authority of law and contrary to the provisions of the city charter? (See Charter of the City of Long Beach, § 253.) It seems to me to be idle to talk about the validity of the sale to Dollard & Rosoff. Certainly they did not question the validity of the sale — they paid for the bonds as they agreed to do. The defendants did not question the validity of the sale. The money was in the city treasury; it was the city’s money; it was taken out of the city treasury by defendants on their own showing, secretly, unlawfully, without resolution or entry made on the books, and paid to the parties who had bid for the bonds and paid for them.
It is claimed that this was done because of some private arrangement made by the mayor of the city with the successful bidders for the bonds, by which he agreed that he or the city would make good any loss "sustained by the bidders if they were unable to dispose of the bonds at the price they bid for them. Can it be claimed that any such arrangement, if made, was binding on the city or that it was legal or justified taking the city’s money to carry out such a plan? If this sort of thing is to be countenanced it makes a farce of the statutory requirement that the bonds of the city must be sold “ on sealed proposals or at public auction.” (Village Law, § 129, as amd. by Laws of 1921, chap. 456, made applicable to the city of Long Beach by Charter of the City of Long Beach, *38§ 254.) Are we to say that municipal officers are justified in making secret arrangements of this kind with prospective bidders, or that they may offer such alleged secret arrangements as justification for subsequently taking the money of the taxpayers to make good these private arrangements? I think not. Such transactions are of serious importance not only to the city of Long Beach but to all the municipal corporations in the State, whether counties, cities, towns or villages.
It seems to me that the charge of the learned trial justice that defendants had no right to take the money out of the treasury to pay it to Dollard & Rosoff and that the payment was unlawful, was right and proper. The trial justice carefully instructed the jury that they were the sole judges of the facts, and that if his references to the evidence did not accord with their recollection they were to disregard his statements. The Court of Appeals has not decided in People v. Walker (198 N. Y. 329) or in any other case brought to my attention, that where a defendant in a criminal action voluntarily takes the witness stand and admits that he did or omitted to do the things charged against him he may assert that there still remains an issue of fact as to the precise thing admitted by him. A similar instruction was sustained by the Court of Appeals in People v. Neff (191 N. Y. 210).
Notwithstanding the instruction that the taking of this money by defendants out of the treasury and the payment thereof to Dollard & Rosoff was unlawful, the learned trial justice left the question of defendants’ intent in making the payment to the jury. This was really the only issue in the case. If they knew it was unlawful, they were guilty of crime in making the payments. If there was any reasonable doubt about it, they were entitled to acquittal. He told them that if the payment was made openly and avowedly and in good faith, they could not be convicted even though their claim was untenable; that even though they might have been mistaken as to the law they were not to be convicted because they made a mistake as to the law. He told the jury that there must have been a felonious intent on the part of the defendants and that if the jury could reconcile the evidence before them with any reasonable hypothesis consistent with the innocence of the defendants it was their duty so to do and to find the defendants not guilty; that if the conduct of the defendants was equally susceptible of two opposite explanations, the jury was bound to assume that it was moral rather than immoral; that before the jury could convict the defendants they must find that the facts clearly and unequivocally proved the guilt of the defendants and that they could not be reasonably reconciled with any other conclusion.
*39These were the last words from the trial justice to the jury in this case. The jury found them guilty.
I will not detail here the additional evidence in the record which seems to justify the verdict. Again there was no dispute about the facts. They were proven' out of the mouths of the defendants themselves. When subsequently this particular transaction became the subject of investigation by the State Comptroller and the grand jury of the county, there is evidence that the defendants sought to cover it up and conceal the true facts by three separate and distinct schemes, each of them false. At first it was sought to make it appear that the money was paid to Dollard & Rosoff, not as a loss on the sale of the bonds, but in alleged settlement of a claim for extra work on their contract for grading and paving streets in the city. The contractors claimed that their bid for the work was too low. The -defendant mayor had denounced their claim as “ absurd on its face ” and stated “ there is no claim of any kind that we can recognize.” He reported to the council on February 6, 1923, that the claim was withdrawn. Nevertheless he testified on the trial: “ I made a settlement with Mr. Rosoff both on the bond transaction and on the extra that he claimed of twenty-one or twenty-two thousand dollars for this $19,360 and that is why this resolution was put through. It was to settle all our differences.” But the so-called “ settlement ” was made eleven or twelve months after the money had already been taken from the treasury without warrant or voucher and paid to Dollard & Rosoff and before they had made any claim for extra work. As a second éffort to conceal the true purpose of the payments it was proven that the mayor had instructed the city engineer to prepare a certificate for work done by Dollard & Rosoff consisting of three items: (1) For extra work on their contract, $13,440; (2) grading on Broadway, $3,200; (3) grading on sewers, $2,720, the three items aggregating the exact amount taken from the city treasury, viz., $19,360, although defendant Reynolds admitted on the witness stand that Dollard & Rosoff did not do the work on Broadway or the sewer work. A third effort to conceal the unlawful payment is found in the record of a meeting of the city council on September 4, 1923, when the defendant Reynolds voted for a resolution reciting that Dollard & Rosoff had presented a claim based on increased cost of labor and materials and had given notice that they would not proceed with the work unless they were paid additional money; that careful investigation had been made by the council; that no other contractors could be procured to do the work; that the clairh was presented in good faith; and that “ your Committee ” agreed to pay them $19,360 in addition to the amount specified in their contract, *40and “ gave directions to the Treasurer to make such additional payments to Dollard & Rosoff accordingly, said additional sum to be paid proportionately in installments as and when said assessment bonds were taken up and paid for by Dollard & Rosoff in accordance with their bid,” and the resolution proceeded to ratify the action of the “ Committee ” and the action by the city treasurer in “ making payments in accordance with the above.” This resolution contains a reference to the award of the bonds to Dollard & Rosoff and recites that their bid was “ the highest and only legal bid therefor.”
The defendant Reynolds testified that he was responsible for the resolution. He said: “ I take all the responsibility.”
There is no dispute on the evidence as to the real purpose of the taking of the $19,360 from the treasury and the payment to Dollard & Rosoff. The transactions recited in the resolution were fictitious. . I think the jury was justified in finding that these efforts on the part of the defendants to cover up the facts were evidence of intentional wrongdoing.
For these reasons I think the judgment should be affirmed.
Judgment of conviction reversed on the law and the facts, and a new trial granted.