The relator having been held after a hearing before a city magistrate to answer to the Court of General Sessions upon the charge of having feloniously and with intent to conceal and secrete received from one Foye property stolen by him, to wit, “ currency of the good and lawful money of the United States of America of the value of $21,000 ” has been discharged upon habeas corpus proceedings. There is no question but that Foye stole $21,000 and that the relator received and withheld the money knowing that it was stolen. This miscarriage of justice has resulted because, it has been conceived, the stolen money thus received was not the identical money stolen. This supposed lack of identity results from forms of bookkeeping incidental to modem banking methods and to certain safeguards growing out of the law merchant which have been adopted for *159the protection of honest business men and were not designed for the protection of criminals.
It appears that. Foye, in 1913-, was a clerk in the transfer department of the Farmers Loan & Trust Company in this city, and thus an opportunity was afforded him to obtain possession of blank certificates of stock of the General Electric Company. Foye took twenty-six of such blank certificates, forged ten of them for 100 shares each and fraudulently induced Charles T. Brown & Company of Philadelphia to loan to him at three different times in the aggregate $100,000 upon the forged certificates as collateral security. After arranging for these “ loans ” Foye arranged with the Columbia Knickerbocker Trust Company of this city to open an ordinary deposit account with him, notified Brown & Company of this fact and instructed Brown & Company to forward to that trust company for his account the sums “ loaned.” Brown & Company did as instructed, and its remittances were credited to Foye by the Columbia Knickerbocker Trust Company. No other credits ever went into this account except those fraudulently obtained from Brown & Company. The channels through which the credits were transmitted by Brown & Company, which finally made up Foye’s credit in his account with the Columbia Knickerbocker Trust Company, have been deemed of some importance, and I will state a typical instance, although to my mind these facts are of no controling importance, as the various intermediaries were merely the agents of Brown & Company in transmitting the credits. (People v. Dimick, 107 N. Y. 13, 32.) The first “ loan ” was for $10,000. Deducting the interterest, payable in advance, Brown & Company, on October 23, 1913, drew its check on the West End Trust Company of Philadelphia for $9,700; that trust company, through some arrangement with the Com Exchange National Bank of Philadelphia, procured the Corn Exchange National Bank to remit by wire $9,700 through its correspondent, the Seaboard National Bank *160of New York, for “ use of Foye,” and charged its account for the same; the Seaboard National Bank sent to the Columbia Knickerbocker Trust Company its check for $9,700 drawn to the order of the Columbia Knickerbocker Trust Company for “ use of James E. Foye,” which check was subsequently paid. Foye had no relations with any of these institutions except the Columbia Trust Company, received no benefit from any of the transactions until the credit was established in the Columbia Knickerbocker Trust Company, and, it seems entirely apparent, no matter how many intermediaries there were they were mere agents and subagents in forwarding the money in the shape of a credit, which credit Brown & Company did not lose control of and could have stopped on discovery of the fraud, at least up to the point being reached when the amount in question was credited to Foye in the Columbia Knickerbocker Trust Company. The relation between Foye and the Columbia Knickerbocker Trust Company was that of debtor and creditor. Foye was the apparent owner of the credit, although of course in reality the credit, being stolen and representing nothing but a theft, belonged to Brown & Company. (Rothschild v. Hack, 115 N. Y. 1, 8; Halsbury’s Laws of England, vol. 9, page 702, paragraph 1387.) So far as the credit in the account was represented by money in the possession of the Columbia Knicker-' bocker Trust Company, hereinafter called the trust company, legal title thereto was in the trust company. Thus far it will be observed Foye had never obtained actual possession of any of Brown & Company’s money, although it had come under his control by virtue of Brown & Company’s having caused a deposit to be made to his credit. On November 18, 1913, Foye drew from the trust company and was handed by the cashier ■■$25,000 in cash, the denomination of the bills being two $5,000 bills and fifteen $1,000 bills. When this money was in the hands of the cashier, legal title to it was in the trust company. When it went into the possession of Foye, whose money was .ft ? *161'Clearly it was not Foye’s. His possession of the money was the consummation of a series of acts constituting larceny. The money in Foye’s hands belonged to Brown & Company, and was stolen. Of this stolen money, thus- coming into Foye’s possesion for the first time, he handed two $5,000 and eleven $1,000 bills to the relator, who was well aware that the money was stolen, and who thereafter secreted and withheld the same, although entirely familiar with Foye’s scheme of operation. Yet it has been held that the relator did not commit the crime of receiving stolen property because the money received from the thief Foye was not the identical money parted with by Brown & Company for the reason that before getting into the actual possession of Foye the money, by virtue of the banking conveniences adopted for its transmission to the thief, became commingled with the funds of the trust company and was represented by a mere credit in a deposit account in relation to which, as a matter of law, the trust company was a debtor and Foye was a creditor.
In arriving at this result it seems to me that the learned justice at Special Sessions necessarily subordinated substance to form. The real question is whether the money received by the relator from Foye was stolen money when it for the first time came into Foye’s hands over the counter of the trust company. The mere fact that, in the process of transmission from owner to thief, the money went into a deposit account and became commingled with the moneys of the trust company does not in any sense determine whether or not the money received by the thief from the trust company was stolen money in his hands. This is demonstrated by People v. Lammerts (164 N. Y. 137). In that case the proof showed that defendant as county treasurer, drew a check upon a bank in which the money of the county was on deposit subject to his order and control, personally took the same to the bank and exchanged it for a draft payable to a third person to whom he delivered it in satisfaction of a judgment *162against himself personally. The draft was subsequently paid and the defendant’s account as treasurer charged with the amount of the check. The transaction, was as the court held, in effect the same as if the cashier of the bank had paid the money over personally to the defendant and then the defendant had taken and passed it back to the cashier in payment for the draft, blow, upon a claim of variance between the proof and the indictment it became necessary to determine whether the defendant had received and misappropriated the money of the county. Upon the debtor and creditor theory, the money of the county, when deposited and mingled with the funds of the bank, became the property of the bank, and the latter became a debtor of the coiinty. But as the Court of Appeals unanimously held, “ the instant the money was paid over upon the check it became the county’s money.” So here the instant the money was paid over to Fóye it became the money of Brown & Company, the true owner, who had parted with it through various intermediaries to Foye under circumstances which made Foye guilty of larceny owner, who had parted with it and had been induced to transmit it through various intermediaries to Foye under circumstances which made Foye guilty of larceny the moment he appropriated it to his own use or to the use of any other than the' owner. Ooncededly a different situation would be presented if Foye’s account in the trust company had" been made up partly of stolen money and partly of money lawfully belonging to him. But in this case the situation is simplified by the fact' that the entire deposit in the trust company was stolen from Brown & Company, and which first came into Foye’s possession when handled over the counter of the trust company. Therefore it cannot be doubted, as it seems to me, that the money received'by Foye and turned over to the relator was stolen money is unerringly traced from Brown & Company, the owner, to Foye, the thief, and as there are involved no equities of tHird persons, no claims of the trust company or of any other *163persons acting in good faith, it seems to me unduly technical to contend that the money thus obtained by Poye and turned over to the relator was not the identical money that Brown & Company parted with. I should be of the same opinion even if Poye had stolen currency out of the till of Brown & Company, deposited an account opened for the purpose containing nothing but the stolen money, and had thereafter drawn the money out on check and turned it over to a receiver. The operation of depositing the money for a few minutes in a bank and then drawing it out again could work no immunity to the person receiving the money with full knowledge of the transaction. Still less should any such claim be supported in a case like this, where the defrauded party has been led to make a deposit for the account of the thief and the latter’s first actual possession of the money is when the bank of deposit honors his check upon it.
A fictitious importance has been attached to whether or not the money that was turned over to the relator was the identical money that Poye could have been said to have stolen originally, whereas the true inquiry is whether it was stolen money. It may well be that Poye could have been convicted of larceny consummated when the credit was entered in the books of the trust company, although this is not free from doubt. (Phelps v. McQuade, 158 App. Div. 528.) But even if Poye could be said to have been guilty of larceny when the account was actually opened by a deposit therein, he was none the less guilty of larceny when he drew money out of the account and appropriated it to his own use. The question is not whether the money turned over to the relator was the money that Poye originally stole, or whether he had stolen it before, or how many previous crimes he had committed in the transaction beginning with the original larceny of the General Electric Company’s certificates of stock. The essential question is, Was the money which Poye turned over to the relator stolen money from the moment that it came into his possession over the counter of the trust company ?. *164I am of the opinion that the money received by Foye from the trust company was, in Foy’s hands, stolen money, because stolen it belonged to Brown & Company, and that this identical stolen money was received by the relator under circumstances which upon this record, establish a violation of section 1308 of the Penal Law.
The order appealed from should be reversed, the writ of habeas corpus dismissed and the relator remanded to the custody of the defendant.