I am unable to agree with the decision about to be made. It is being held therein that when a person is indicted for larceny by false pretenses “ no conviction may be had for the larceny by false pretenses unless the false pretenses proved have been alleged in the indictment.” There is cited in support of this statement section 1290-a of the Penal Law; People v. Lobel (298 N. Y. 243) and People v. Karp (298 N. Y. 213). Section 1290-a provides in part that if “ the defendant made use of any false or fraudulent representations or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment * * * alleges such representation or pretense * * *. As long as one of the false or fraudulent representations or pretenses alleged be proven, any other related representation or pretense, though not alleged, may be given in evidence.” (Emphasis supplied.)
As I read this statutory provision it does not state that no conviction may be had unless the false pretenses proved have been alleged in the indictment. It provides that (1) false or fraudulent representations must be alleged in the indictment and (2) if any one of such representations or pretenses is proven any other related representation or pretense though not alleged, may be given in evidence.
The provisions of the Penal Law relating to larceny were revised by chapter 732 of the Laws of 1942. Section 1290 redefined larceny. The former section defined not a single crime of larceny but three separate and distinct offenses, known as larceny, embezzlement and obtaining property by false pretenses. Judge Fuld — then an assistant district attorney of New York County — in writing about the re-enactment stated that the new law “ does not broaden the scope of the crime of larceny nor designate as criminal what heretofore has been innocent and not criminal ” (The New Larceny Law, N. Y. L. J., May 19, 1942, p. 2124, cols. 1, 2).
At the same time the Legislature enacted section 1290-a. The provisions thereof were not new as Judge Fuld pointed out in the same article. After reviewing the contents of the section it was written (col. 3): “ Under the old law, the People were privileged to show false representations other than those *566alleged in the indictment, as long as they were related to the transaction charged (see People v. Rothstein, 1904, 180 N. Y., 148,154-155; People v. Sattlekau, 1st Dept., 1907, 120 App. Div., 42; People v. Colmey, 1st Dept., 1907, 117 App. Div. 462, aff’d 188 N. Y., 573; People v. Donaldson, 1918, 36 Cal. App., 63, 171 Pac., 442; State v. Elliot, 1912, 68 Wash., 603, 123 Pac., 1089). The new statute expressly perpetuates that rule by providing that as long as one of the false or fraudulent representations or pretenses alleged be proven, any other related representation or pretense, though not alleged, may be given in evidence.” (Emphasis supplied by the author.)
People v. Lobel (298 N. Y. 243) has no relevancy to the problem before us and in any event the holding therein has been overruled by the 1950 amendment (L. 1950, eh. 149) of section 1290-a. When that case was decided the last sentence of the section provided that if the theft “ was effected ” by means of any false or fraudulent representation or pretense, evidence thereof could not be received at the trial unless “ such means ” were alleged in the indictment. The court held that if a thief gains possession of or title to the property without the owner’s consent it could not be said within the language of section 1290-a that the theft was “ effected ” by false pretense, despite the fact that prior to the actual theft false representations were made which produced the property stolen. Three members of the court dissented and Judge Fuld writing for two of the dissenters expressed the view (pp. 261-262) that “ if the People elect to prove that the thieves made use of false representations to induce certain conduct on the part of their victim, and those representations constituted an integral part of the scheme devised to steal the property —as in the case here — the theft is one * effected ’ by those misrepresentations, and the indictment must set them forth.”
Thereafter, the Legislature amended the section (L. 1950, ch. 149) by deleting the terminology of a theft being “ effected ” by means of a false representation or pretense and substituted the present language that if a “ defendant made use ” of false representations ‘‘ in the course of accomplishing, or in the aid of, or in facilitating the theft” they must be alleged in the indictment or evidence thereof may not be received.
Thus, to summarize, People v. Karp (supra) and People v. Lobel (supra) are authority for the proposition that if the indictment contains no allegation of false representations or pretenses proof thereof may not be received. But once such an allegation is found in the indictment then the last sentence of section 1290-a comes into play and if any one of the alleged *567false representations or pretenses is proved ‘ ‘ any other related representation or pretense, though not alleged, may be given in evidence.”
The third count (as renumbered) of the indictment accuses the defendant of the crime of grand larceny and alleges four false representations. They are (1) that the cargo of speed informers was destroyed by fire on August 24, 1954; (2) that said loss was total; (3) that there were 4,012 informer units in said cargo and (4) that the unit value of each was $6.75. The amount of the charged larceny was $18,112. The amount of the paid loss was $22,230. Thus, the defendant was apprised before the trial that he was accused of larceny in that he had falsely represented that there was a total fire loss of 4,012 units at $6.75 per unit. In my opinion there was overwhelming proof that no more than 3,000 units had even been manufactured and that prior to the fire the unsold units were not salable, the retail price had been repeatedly reduced and finally the book value of the unit price had been reduced to $2 per unit.
It was proved beyond a reasonable doubt that the defendant knowingly subscribed and presented to the insurer a false proof both as to the number of units and the amount of the loss. While it is true that the statement was prepared by a representative of the general adjustment bureau, there was clear proof that the defendant and his employee, Chartoff, represented to both Beglin and Olson, representatives of that bureau, that there were 4,000 units on the truck. The defendant further falsely represented that 3,000 of these units were being shipped to defendant’s brother-in-law in Florida, who was to pay for 1,000 units within 30 days and the remaining 2,000 were on consignment. This obviously presented a picture to the adjusters of a routine bona fide fire loss and it is apparent from all the testimony that the loss was settled upon these and other representations. The jury could have found that the defendant had no purchase order for any portion of the units from his brother-in-law. The latter testified that ‘‘ strictly as an accommodation I told him (the defendant) it was all right to send the units down to put in my garage * * * and when he came down, hire a truck go up and down the east coast disposing of the units in that manner.” The jury could further have determined from other testimony that it was the intention of defendant that the units should be burned in the truck fire, as they were, before they reached Florida. The triers of the fact could further have found that all of this Florida activity was window dressing to convince the insurer that the loss was a routine one. No useful purpose would be served in further *568detailing the evidence. There. was a wealth of proof that defendant was guilty of the crimes of presenting a false claim in writing, subscribing a false proof of loss and larceny by false pretenses by his statements in the proofs of loss that there were more than 4,000 units on the truck when in fact there were less than 3,000 thereon.
Furthermore, I am unable to agree with the determination that the proof of incendiarism was inadmissible. As I understand the prevailing opinion it is held in substance that such proof does not fall within any of the exceptions enunciated in People v. Molineux (168 N. Y. 264). Next, it is held that if it be considered a representation proof thereof was inadmissible because only false pretenses alleged in the indictment may be proved upon the trial. In the proof of loss the defendant stated that the cause of the fire was unknown. The evidence now being ruled out showed that Cohen knew the cause of the fire; that he telephoned his insurance agent and requested the issuance of a binder insuring 4,000 units at $6.74 per unit while in transit on the truck. Thereafter, he told Chartoff, one of his employees that he would ‘ ‘ arrange an order ’ ’ with his brother-in-law in Florida and after some conversation it was agreed between Cohen and Chartoff that the latter should start for Florida and while en route throw gasoline on the cargo and then start a fire. All of this was accomplished.
Looking for the moment at the last sentence of the first subdivision of section 1290-a of the Penal Law it would seem that the statement that the cause of the fire was unknown was a related representation properly received in evidence though not alleged in the indictment. But if it could be said as a matter of law that this was not a related representation the evidence was properly received. The rule that a person cannot be convicted of one crime by proof that he was guilty of another and the various exceptions to the rule are well known. Perhaps no clearer statement of the exception with which we are here concerned can be found than the following from People v. Katz (209 N. Y. 311, 328): “The general rule is rooted in the principle that a man may not be convicted of one crime simply because he may be shown guilty of another when there is no connection between the two. * * * Quite another principle is to be invoked, however, when guilt cannot be predicated upon the mere commission of the act charged as a crime. In such a case the general rule gives way to the exception under which guilty knowledge of a defendant may be proved by evidence of his complicity in similar offenses under such circumstances as to support the inference that the act charged was not *569innocently or inadvertently committed. Familiar illustrations of this exception to the general rule are to be found in cases of uttering counterfeit money, in forgery, in obtaining money under false pretenses, and in receiving stolen property.”
“In order to constitute the crime of obtaining property by false pretenses, it is not sufficient to prove the false pretenses, and that property was obtained thereby; but it must be proved that the false pretenses were made with intent to cheat and defraud another.” (People v. Baker, 96 N. Y. 340, 348.) In the case at bar it could be contended by the defendant that the representation as to the number of units destroyed and the value thereof was not false and if incorrect was innocently and inadvertently committed with the representatives of the adjustment bureau having full opportunity to investigate the loss. Admittedly, proof tending to show a defendant guilty of another crime is always damaging to him. But here, where the prosecution was compelled to prove intent to defraud, the evidence that he voluntarily participated in having the contents of the truck burned in Pennsylvania was admissible under the stated exception.
The trial court in its charge expressly told the jury that “ there is no charge here before you of arson in connection with the fire in the truck near Harrisburg.” In lay language the reasons were correctly stated for receiving the proof and lastly the jurors were cautioned that a finding of guilt on the first three counts of the indictment should not be made ‘ ‘ merely because you feel that the defendant may have been involved in the arson or the proof (that) has been offered tending to indicate his involvement in the firing of the truck or the arson of the truck in the state of Pennsylvania.”
The remaining six counts of the indictment charge the defendant with subscribing and presenting false proofs of loss and the larcenies of moneys from named insurance companies in connection with a separate loss some 11 days after the truck fire in Pennsylvania. It was conceded by all parties that this fire originated on an upper floor occupied by another tenant, in a building wherein defendant’s plant was located on the fourth floor. There was no proof or claim that the fire was incendiary in origin and it was these counts the District Attorney was discussing when he stated that there was no claim in the indictment of arson. One searches the evidence in vain for even a hint that there was any connection between the truck fire loss of August 24 and the water damage of September 4. The gravamen of the charge against defendant upon which the last six counts are basefl is that the da7 following the fire op the *570upper floor, when there had been no fire in defendant’s premises and little or no water damage, he removed insured personal property to another room and with the assistance of an employee, who so testified, threw buckets of water over the speed informer parts causing severe water and rust damage. Thereafter he filed proofs of loss and collected substantial amounts from the insurers.
The prevailing opinion states that the evidence relating to the truck fire was received to prove the guilt of the defendant of the counts relating to the later and independent water damage loss. While it is true that the court in its charge did not expressly caution the jury that the evidence relating to incendiarism admitted as to the first three counts should not be considered in passing upon the last six counts no claim is made by the defendant that the jury was misled thereby. No request was made that the trial court clarify the matter and no question is raised in regard thereto by the defendant on this appeal. The court throughout its charge used precise language in referring to the first three counts as a fire loss and the last six counts as a water damage loss. A careful and repeated reading of the entire charge discloses that the jury could not have possibly been misled into believing or inferring that the proof of incendiarism as to the truck fire was to be cast into the scales to convict the defendant of the counts relating to the water damage loss.
But most disturbing is the finding by this court of numerous errors in the charge. It is unnecessary to review them in detail. One example will suffice. The trial court charged the jury pursuant to section 399 of the Code of Criminal Procedure that a conviction could not be had upon the uncorroborated testimony of an accomplice. The prevailing opinion states that this was not in the case and that there was no claim that the defendant had an accomplice in any of the crimes charged in the indictment. It is concluded by the majority that this instruction was tantamount to telling the jury that it could find the defendant guilty of conspiracy or incendiarism on the testimony of Chartoff, who fired the truck. I do not so understand the evidence. Chartoff was an accomplice to the defendant in connection with some of the very counts of this indictment. The first three counts thereof are based upon the activities of Cohen in subscribing and presenting to the insurer a false proof of loss and obtaining money thereby in that he represented there were 4,012 informers on the truck when there were not to exceed 2,094 thereon. The witness, Zitrin, who was Cohen’s bookkeeper, testified that after the truck was loaded Cohen told the *571witness there was 4,000 units on the truck. Zitrin told defendant there couldn’t be that number because the inventory record showed there weren’t that many in stock. Zitrin made out an invoice to Chartoff for 2,640 units. Cohen then told him Chart-off was verifying the count. Shortly thereafter, Chartoff came to Zitrin and verified Cohen’s statement that there were 3,972 units on the truck. Thereupon Zitrin voided the first invoice and made out another for the figure of 3,972. Turning to the testimony of Chartoff he stated that “ twenty-six hundred and something ” units were loaded on the truck by him and Cohen. An invoice was made out by Zitrin for 2,640 units but Cohen had it changed and the one given to Chartoff was for 3,972 units. Chartoff testified that the defendant ‘ ‘ was going to make it as high as he could make it, which he told me so.”
Thus, the jury could have found that Chartoff not only knew there were 2,640 units on the truck and not 3,972 but actively participated in getting the bookkeeper to make out a false invoice to him for the latter figure. Subsequently, this invoice was used to mislead the insurer but Chartoff’s activities as an accomplice did not stop there. When Beglin, the adjuster for the insurer, first discussed the truck contents loss with the defendant, the latter told him there were 3,972 units on the truck and in addition some 28 units that Chartoff had taken out of his personal automobile and placed on the truck. Cohen then called in Chartoff to verify this statement. Chartoff not only did so but made a statement in writing to Beglin, which was received in evidence upon the offer of the defendant. Therein it is stated that “ on Aug. 23-54 I received by memo 3972 SF 100 Audio Speed Informers that I was taking to Miami, Florida.”
Then to cap all this we find in appellant’s brief the contention that Chartoff was an accomplice, not only to the firing of the truck, but to the crimes charged in the indictment and “ under the facts in this case it (Chartoff’s testimony) is entirely insufficient to convict him (defendant) of the crime charged.” In the light of all this, however, it is being held reversible error because the court charged that the testimony of an accomplice must be corroborated on the ground that there is no claim or intimation that the defendant had an accomplice in any of the crimes charged in the nine counts of the indictment.
To keep this opinion within any reasonable length it is impossible to discuss in detail the other portions of the charge that have been singled out as constituting reversible error. Suffice it to say that no exceptions were taken by the defendant to any *572of these portions of the charge. There were no requests to charge upon these subject matters although the defendant was represented by three experienced trial counsel all of whom actively participated in the trial and this appeal. The general rule is that points raised by briefs, not properly presented by the record, are ordinarily not considered by an appellate court (People v. Hicks, 287 N. Y. 165, 174). It is recognized that alleged errors will be reviewed and relief granted if they affect the substantial rights of a defendant. In this case, however, the same experienced counsel have presented a voluminous brief and neither therein nor upon oral argument was error assigned to the court’s charge in any of the respects now found by this court to be reversible error. In other words, up to the present time none of these matters has been assigned by counsel as a ground for reversal. At was written in People v. Mardavich (287 N. Y. 344, 346): “So little importance was ascribed to the refusal [to charge] by the trial counsel that error there has not been asserted by counsel as a ground of reversal. Under these circumstances we conclude that it could not have affected the determination of the jury and should be disregarded under section 542 of the Code of Criminal Procedure.” It seems to me that we are adding a new dimension to appeals in criminal cases if numerous findings of reversible errors are to be made upon _subject matters about which the defendant and his counsel have not complained and from all that appears in record and brief and from oral argument they were and are in full agreement.
I would affirm the judgment of conviction.
All concur, except Bastow, J., who dissents and votes for affirmance in a separate opinion. Present — McCurn, P. J., Ktmtut.t., Williams, Bastow and Goldman, JJ.
Judgment of conviction reversed on the law and facts and a new trial granted.