(concurring). I am in accord with the conclusion reached by Mr. Justice Young on the facts as to appellant Seely. It is unnecessary to consider the facts as to appellant Connolly, as he concedes that only questions of law are involved. As to all questions of law I agree with the determinations of Mr. Justice Young but differ in the reasons in several respects and deem it proper to express my views thereon.
The proof of defendant Connolly’s financial transactions was admissible upon the theory of “ sudden enrichment.” (People v. Gaffey, 182 N. Y. 257.) But if, as urged, it was not admissible upon that basis, then it was admissible for another reason. These financial transactions were handled in an unusual, irregular and unbusinesslike manner. One advised of the circumstances would immediately inquire: Whence came this money, kept out of the ordinary channels where it would readily be disclosed? Why were these funds not deposited in bank and disbursed by way of checks? The method was open to suspicion. These questionable transactions took place during a period within which it was charged defendant Connolly committed official acts for which money gain might be a motive, and thus the inference was warranted that this money bore relationship to official acts. Of course, this inference might be countered by an explanation which would disclose an unimpeachable title. But it was for a jury to determine upon the facts, without or in light of an explanation given by the defendant, whether such inference should or should not be drawn. No such explanation was given by defendant Connolly save such as might be taken from a general denial of the receipt of moneys upon the basis claimed.
The admission of the bank account of Moore presents a more difficult proposition. Were this a matter of initial impression, I would be in doubt as to the admissibility of this proof, either upon the theory of “ sudden enrichment ” or because the circumstances under which the money was handled were so unusual or out of the ordinary that they justified the inference, in light of the other circumstances in the case, that' they were corruptly acquired. But People v. Gaffey (supra) is controlling and must be followed, *193although there seems to be a different view expressed in Williams v. United States (168 U. S. 382).
In considering the purpose for which this proof could be received, it must be remembered that it was a conceded rule that the People might prove that Moore, not named in the indictment, was a conspirator. As an act of an alleged conspirator in the course of the common plan, if it were such, it would not be admissible unless it had first been proved that Moore was a conspirator. While, in the opinion of Mr. Justice Young, with which I am inclined to agree, it was so first proved, I rest my view that the evidence was admissible on a different basis, i. e., as evidence of Moore’s corrupt motive in doing certain acts which, it is claimed, were done pursuant to the conspiracy, in order to connect him with it. Here, motive may have played an important part. Official acts might be deemed innocent or the result of official neglect, or, as suggested by Mr. Justice Rich, they were as consistent with innocence as with guilt; but when it is shown that money was the impelling inducement of the acts, the balance may be turned in favor of guilt, especially where the People’s case, as here, was largely built on circumstantial proof. Moore’s official acts, the motive therefor, with other facts in the case, were the basis upon which the jury might have found that Moore had joined Phillips and defendant Connolly for the purpose of cheating the city. Defendant Connolly concedes that aside from legal error the conviction was warranted. This, in effect, means there was sufficient proof to show a conspiracy between defendant Connolly and Phillips. As part of the proof to connect Moore with either or both of them, it was proper to show the spirit in which he performed his official acts. The evidence bore upon Moore’s relationship to the others, and was properly admissible as to him. Cuyler v. McCartney (40 N. Y. 221) is not to the contrary. In that case it was claimed that an assignment for the benefit of creditors was fraudulent, and that the assignor and assignee had conspired to that end. It was held that the admissions of the assignor were not competent to prove the conspiracy as against the assignee, since the conspiracy had not first been otherwise proved. But in that case it was stated that the admissions of the assignor were proof of his fraudulent intent as to him. In Rutherford v. Schattman (119 N. Y. 604) it was stated that until a conspiracy was prima facie proved, the acts and declarations of an alleged conspirator were not admissible as against others, but were against himself. But it is urged that the absence of Moore from the trial, a situation not chargeable against defendants, made it impossible to present an explanation of the state of his bank account, with the possibility that it "might be demon*194strated it was not involved in corruption. The want of explanation, through no fault of defendants, would be for the jury to consider in determining whether or not to draw the inference argued for by the People. It is possible that in evaluating this proof the jury took into consideration the fact that Moore was not present to explain away the inference that might be drawn, and that the jury disregarded the proof entirely. If, during the course of this trial, a witness had testified that Phillips had given money to him to present to Moore, and that the witness had given it to Moore, or if a witness had testified that he had been told by Moore that the latter had conspired with Phillips to cheat the city, surely, upon the hypothesis that it might be proved that Moore was a conspirator, such testimony would be proper within the Mmitations above stated. The absence of Moore would not render it inadmissible. The fact that Moore was not present as a witness or defendant might make a difference to a jury in determining the weight to be given to the testimony. A jury might refuse to accredit the testimony in the absence of a man who might be able to refute it. There is involved here a question of quality, and not competency, of proof. Had the court been requested so to do, it might have called the attention of the jury to the absence of Moore through no omission of the defendants, and instructed the jury that it might take that fact into consideration in weighing the proof, as indicated. In light of the view of counsel for defendant Connolly that this testimony was admissible only after it had been otherwise proved that Moore was a conspirator, no such request could have been in mind. Granting the rule that such proof is inadmissible unless there be opportunity to explain, it has not been violated. There was no proof that Moore was dead, absent from the jurisdiction, or in any wise incapacitated from attending as a witness. Nor is there anything to indicate that defendants were denied a full opportunity to call him. ' While a failure to submit him as a witness was not chargeable against defendants, their unhampered privilege to call him was opportunity to explain. For these reasons the testimony was admissible, and it follows that defendant Connolly was not entitled to the charge requested, even if it had been framed as outlined in the opinion of Mr. Justice Young.