(dissenting). Defendants are the manager and the clerk second in command of a supermarket. By its verdict the jury found that, after complainant was observed shoplifting, defendants unlawfully threatened to accuse him of petit larceny and to expose him to disgrace unless he paid defendants a sum in excess of the value of the merchandise complainant stole. Complainant paid the sum demanded, which defendants turned over to the owner of the store.
The jury was charged, in effect, that the defendants should be acquitted if it was found that they had demanded of the complainant that he pay only what he rightfully owed, and that they might be convicted if they had threatened the complainant with prosecution unless he should pay an amount over and above what he rightfully owed. At the conclusion of the charge defendants requested the court to charge that “ if in the judgment of the jury the defendants honestly believed that the amount which the complainant paid or agreed to pay represented the approximate amount of the merchandise which he or they had previously stolen from the Hill Supermarket, then the defendants must be acquitted.” That request was refused, “ except as already charged.” In my opinion this was error. As the result of the court’s charge and refusal to charge the jury was permitted to convict defendants of the crime of extortion on proof that they had induced complainant, by the threats alleged, to pay to defendants more than he rightfully owed for goods which he had stolen, even though defendants might have honestly believed that the amount demanded from complainant was the amount which he rightfully owed. In my opinion, although the question is one as to which there is a conflict of authority, if defendants, acting without malice and in good *167faith, made an honest mistake, they were not guilty of the crime charged. There would then be no criminal intent. The defendants were not acting in their own behalf but in that of their employer, in recovering what they believed to be rightfully due it. I find no precedent to indicate that the statute was intended to cover a case of this kind. (People v. Griffin, 2 Barb. 427; People v. Sheridan, 186 App. Div. 211; People v. Clark, 242 N. Y. 313.) Although defendants’ request was not framed with strict accuracy, there could have been no mistake as to what was intended, and in my opinion the substance of the request, at least, should have been charged. In addition, the verdict was against the weight of the credible evidence.
The judgments, and orders denying motions to set aside the •verdict should be reversed and a new trial ordered; and the appeal from ‘1 every intermediate order ’ ’ should be dismissed.
Nolan, P. J., Adel and Schmidt, JJ., concur, with Johnston, J.; Wenzel, J., concurs in the dismissal of the appeal from “ every intermediate order,” but otherwise dissents and votes to reverse the judgments and orders denying motions to set aside the verdict, and to order a new trial, with opinion.
Judgments of the County Court, Nassau County, convicting defendants of the crime of extortion and suspending sentence, affirmed.
Appeal from “ every intermediate order ” and from orders denying motions to set aside the verdict dismissed.