The real question involved in “this appeal relates to the sufficiency of the proof to sustain the indictment. The appellant was convicted of the crime of grand larceny in-the first degree, upon an indictment containing two counts. On the trial the second count was withdrawn, and the case then stood upon one which charged a larceny in these words:
“ That said Perrin H. Sumner, late of the city and county of New York aforesaid, on the 16th day of July, in the year of our Lord one thousand eight hundred and ninety-six, at the city and county aforesaid, with force and arms, the sum of one thousand dollars in money, lawful money of the United States of America, and the value of one thousand dollars of the goods, chattels, and personal property of one Charles H. Goodwin, then and there being found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.”
It is urged by counsel for the appellant that the proof made on thé trial of the cause did not establish the particular charge laid in the indictment of common-law larceny, but only that the prisoner was guilty of procuring money by false pretenses; and, inasmuch as he was not indicted for the latter offense, the ■conviction cannot stand. It has been explicitly decided in this state that an indictment for larceny at common law cannot be upheld only by proof of the procurement of property by false or fraudulent representations. People v. Dumar, 106 N. Y. *320503, 13 N. E. 325. In that case, the court, by Danforth, J. said:
“ In order to constitute larceny, there must have been a taking bf personal property against the will of the owner. The other ofíense could not be confounded with it. In either case, the' property may have been obtained by artifice of fraud; but i£ in the one the owner intended to part, with his property absolutely, and convey it to the defendant, but in the other intended to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was therefore uniformly "held that if a person, through the fraudulent represen, tations of another, delivered to him a chattel intending to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses.”
In the case of People v. Hughes, 91 Hun, 358, 36 N. Y. Supp. 496, the court said by Van Brunt, P. J., that :
“ It is equally well settled that, to constitute a common-law larceny, it is not necessary that the property stolen should be taken from the possession of the owner by trespass; but if a person obtains possession of the property from the owner for a. special purpose, intending to appropriate it to his own use, and not to the special purpose for which he received it, he is guilty of larceny; and so it has been repeatedly held (People v. Laurence, 137 N. Y. 517, 33 N. E. 547); the distinction between the two cases being that the owner of the property stolen in the case last cited did not part with the possession of it with the intent of conferring title to the property upon the party charged with the larceny.”
In the case of People v. Laurence, supra, it is pointed out that neither under the Penal Code nor at the common law was it essential, to constitute the crime of larceny, that the property should have been taken from the possession of the owner by a trespass—
“ But if a person obtains possession of property from the owner for a special purpose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to his own use, and he subsequently does appropriate it to his own *321use, and not to the special purpose for which he received it, he is-guilty of larceny ; and so it has been repeatedly held. Smith v. People, 53 N. Y. 111; Loomis v. People, 67 N. Y. 322; People v. Morse, 99 N. Y. 662, 2 N. E. 45. In such a case it is essential for the people to show not only that the person obtained possession of the property in that way, but that he did it animo furandi with the intention at the time of subsequently appropriating it to his own use.”
It is very plain that, upon .the count of the indictment upon which the prisoner was tried, it was competent for the prosecution to give evidence of larceny by trick and device; and, according to all the cases, the test of the sufficiency of the proof to sustain the charge in the indictment is : Did the complainant, Goodwin, intend to pass title to the $1,000 mentioned in the indictment, or did he give that sum of money into the possession of the defendant for a special purpose, to be applied to that purpose only, and did the defendant, instead of so applying that money, appropriate it to his own use ? An examination of the evidence adduced upon the trial establishes each of the facts necessary to the maintenance of the charge. That the defendant prepared and executed an adroit and somewhat complicated scheme for obtaining the complainant’s money by exciting his cupidity, and inducing him to become a party to a transaction from which a large profit was promised, and that the intent of the defendant was merely to get from the complainant the $1,000, that he might keep it for himself, is too plain for contradiction.
It is immaterial that the defendant’s acts in consummation of his purpose were of such a character, as to constitute contract relations in legal form between him and the complainant. The trick or device was none the less a guilty act because its accomplishment was sought through lawful forms. The defendant was a broker, seeking to negotiate a sale, for his principals, of land in New Jersey. That he falsely represented to the complainant the condition and value of that land is uncontradicted. That he solicited the complainant to purchase the land, under a representation that he had an arrangement made by which it could be transferred to another party for many times the price *322which the complainant would pay, it also uncontradicted; that is to say, he oSered the property to the complainant at $9,000, declaring that he had another person to whom it could be immediately resold at the price of $25,000 ; and, at the same time, he sought to make an arrangement with the complainant by which the profits of a resale should be divided between them. It is apparent he had no such purchaser ready to pay $25,000; but, on the contrary, the only third party in any way standing in the relation of an actual or nominal purchaser was one Lancaster, with whom the defendant had negotiated or made a contract for the sale of the property at $6,000. The complainant had paid $200 to the defendant on the 12th of June, 1896,, on account of the purchase price of $9,000. Oti the 14th of June, the complainant, being in Albany, was summoned by a telegram from the defendant to Hew York, and requested to bring with him $1,000, which is the amount mentioned in the indictment, and the sum the defendant wished to get into his possession. On the complainant reaching Hew York, he was told by the defendant that a man named Lancaster had seen the owners oi the property, who, upon the payment of one thousand dollars, would reduce the price from nine to six thousand dollars. The complainant asked the defendant if he had to pay Lancaster any money on account of the transaction, and he said: “ Ho; not a cent. He does it out of friendship for me. I may have to give him a new hat or a dinner.” The representation made by the defendant was that the $1,000 was to go to the owners of the land. On the 17th of June, the. $1,000 was delivered to the defendant; the uncontradicted testimony of the complainant being that he told the defendant he would deposit $1,000 in his hands, “ provided he would not pay it to anybody until I told him, as I wanted to examine the property, and see that the title was all right before any money was paid over to anybody. And he said, 1 All right, I will agree not to pay it over to anybody until you say; ’ and I gave him a thousand dollars in bills.” That $1,000 was never paid by the defendant to any one, so far as appears. He declared to the complainant that he was to pay it to the owners of the property. Their testimony Shows that he declared to them that he was to pay it to Lan*323caster. When the complainant gave the defendant the money, on the 17th of June, a receipt dated the day before was given by the defendant, which is as follows:
“ Received from Charles H. Goodwin one thousand two hundred dollars, being on account of purchase of nine hundred acres of land in Sussex county, New Jersey, as per argeement. Price $6,000; $2,000 cash, and $4,000 mortgage on said land."
It is true that, at the time this receipt was given, a certain agreement had been made between the complainant and the defendant respecting the division of profits between them upon a resale of the land. The complainant agreed to give and pay over to the defendant or his assigns one-half of all that the land might sell for; that is to say, one-half of all sales of timber made from the land, and one-half of all the profits on the sales of land that should be made, such profit to be ascertained after deducting the cost of the land and expenses. The promise of the defendant that he would not part with the $1,000 was, according to the testimony of the complainant, made on the 17th of J une, at the time the money was handed to the defendant. It is evident that the complainant did not in any way intend that this $1,000 paid on June 17th should ever be retained by the defendant for his own use. It is also evident that it was intended by the complainant that the defendant should not part with it until the complainant was satisfied as to the title and value of the property, and should give directions that it be paid over to the sellers of the land. It was not given by one co-partner into the hands of another, to be used for the co-partnership business; but it was given by a purchaser of land to a-broker, to be used for a specific purpose, and only under special circumstances and conditions; for the partnership contemplated between the parties did not constitute the defendant a joint owner of the property to be purchased, but the interest which he was to have was simply in the product of the sales of land and timber, and the title to which was to be in the complainant, and no one else. When the $1,000, therefore, was delivered into the possession of the defendant, it was exclusively for a special purpose, not to be paid to the sellers until direction was *324given so to do, and they never received a dollar of it. It was*, not delivered to the defendant, therefore, in the relation of or as a co-partner. The terms of the receipt do not affect this view of the subject. The recital in it that the money is paid “ as per agreement ” does not refer to a co-partnership agreement, so called. There is nothing in that agreement concerning the $1,200 mentioned in the receipt, or any part of it. The words “as per agreement,” in the receipt, the jury must have found, and were justified in finding, related to the particular and distinct agreement made by the defendant that he would not- part with the $1,000 until the complainant was satisfied as to the title and value of the property.
Upon an examination of the whole record, it seems to be apparent that the proof was sufficient to show that, from the beginning of the defendant’s transactions with the complainant respecting this land and money, he was pursuing a scheme to get $1,000 from the complainant by trick and device. The owner intended to part with possession, but not with the title to the money, except for the special purpose and under special circumstances. That makes the difference between false pretenses and larceny. Weyman v. People, 4 Hun, 511, affirmed 62 N. Y. 623; Kelly v. People, 6 Hun, 509 ; Smith v. People, 53 N. Y. 111.
The judgment appealed from should be affirmed. All con-cure, except McLaughlin, • J., dissenting.