(dissenting). Appellants have been found guilty, under section 580 of the Penal Law, of conspiring to commit a crime. The crime which the People claimed had been the subject of the conspiracy was the issuance of untrue and misleading advertisements offering merchandise, for sale (Penal Law, § 421). In our opinion, the proof did not establish that the acts which were planned would have constituted that crime.
Section 421, so far as pertinent, states that “Any person * * * w;ho, with intent to sell * * * merchandise # ⅜ ⅜ or to induce the public in any manner to enter into any obligation relating thereto, * * * places before the public, or causes * ⅜ * to be * * ⅝ placed before the public, ⅜ # ⅜ an advertisement * * s regarding merchandise ⅜ s * so offered, * * ⅜ which advertisement contains any assertion, representation or statement of fact *546which, is untrue, deceptive or misleading, shall be guilty of a misdemeanor.”
The proof, considered in the light most favorable to the People, warranted findings that the corporate appellant was engaged in a retail sales business and that the three individual appellants were its executives, that the individual appellants, on behalf of the corporate appellant, caused a certain television broadcasting establishment to announce through the latter’s telecasting facilities, over an extended period of time, an offer to sell sewing machines in accordance with a certain sample which was exhibited at the same time, at the price of $29.50 each, and a promise that a sewing kit would be given, at no extra cost, to each of the first 50 persons who would respond by telephone and who would make a purchase of such machine, that it was actually not the intention of the appellants to sell any such machines, that their real intention was to induce the persons who responded to the advertisements to buy a different machine at a much higher price, that, in order to turn the interest of prospective customers away from the advertised machine and to the more costly one, they planned to have a certain device installed upon models of the advertised machine which their salesmen would demonstrate on visits to the customers, which device would cause the model to break down while being operated by the customer in the normal manner, and also planned to cause their salesmen to make remarks concerning the advertised machine which would give customers the impression that it was not advisable to buy it, and that where customers insisted on purchasing the advertised machine despite the use of the said means designed to dissuade them, appellants planned that they would simply not accede to such insistence, would offer excuses for not complying with the demand and would, if necessary, return money which the customers had paid on account of their transactions.
The majority opinion might well give the impression to one who is not familiar with the record on appeal that appellants were charged with and tried for conspiring to advertise falsely that the $29.50 machine had certain capacities and qualities which it did not in fact have. The question of the true capacities and qualities of the machine was not litigated. The sole claim of falsity, which claim pervades the information, the prosecutor’s statement to the court at the opening of the trial, and the entire trial, is that appellants had no intention of selling the machine they advertised for sale. It may well be, as indicated in the majority opinion, that in the ordinary action prosecuted under section 421 of the Penal Law an intent to sell *547the advertised commodity may be inferred from the statements and condnct of the defendant, despite a contrary latent intent on his part, but that inference may not be indulged in for the purpose of upholding a conviction where the theory of the prosecution is to the contrary, that is, that the defendant did not intend to sell the commodity in question. The record does not indicate that the trial court expressly found that appellants conspired to misrepresent the capacities or qualities of the machine. It would be erroneous to say that any such finding was implicit in the trial court’s determination that appellants were guilty of the charge as made, and it is error to rely on any such finding in. this court.
Section 421 of the Penal Law must be construed “ according to the fair import of [its] terms, to promote justice and effect the object of the law” (Penal Law, § 21; People v. Vetri, 309 N. Y. 401, 406) and, as stated in Vetri (supra, p. 406), under this mandate a construction ‘ ‘ which makes penal that which is not plainly written in the statute, would hardly promote justice or effect the object of the law”. Under this rule of construction, it should be held that there would not be a violation of the section unless there was, in the words of the section itself, an ‘ ‘ intent to sell ” or an intent ‘ ‘ to induce the public * ⅜ * to enter into any obligation relating” to the “merchandise ” to which reference is made in the advertisement, and the section should not be held to apply to a case such as this, in which the intent of the advertisers was, contrary to the situation contemplated by the statute, not to sell the advertised merchandise or to induce the public to enter into an obligation with respect to it, but to lure customers into exposing themselves to the efforts of the advertisers to sell them merchandise other than that offered in the advertisement. In other words, it should be deemed applicable only to a case in which the advertisement is calculated to deceive customers as to qualities or values of the advertised article, in order to induce them to part with value or enter into an obligation in connection with a purchase of the advertised article (cf. People v. Le Winter’s Radio Stores, 256 App. Div. 1098).
State v. Krasne (103 Neb. 11) does not hold, as claimed by the majority, that a statute such as section 421 of the Penal Law is violated by any misleading statement whatsoever in an advertisement, that is, even one that is not intended as an inducement to buy a product which the advertiser wanted to sell. The theory upon which the defendant was there prosecuted and convicted, and upon which the conviction was sustained by the Supreme Court of Nebraska, was not for advertís-*548ing to sell a certain branded garment at a stated price when in fact be bad no intention to sell that specific product, or for conspiring so to advertise. The theory was that, after so advertising, be passed off to customers, or intended to pass off to them, other goods as the advertised branded garment.
It is not to be denied that a sales campaign such as appel-' lants conducted is morally offensive, but it does not constitute the crime contemplated by section 421 of the Penal Law. Accordingly, the planning of such a campaign is not a criminal conspiracy to commit the crime set forth in said section.
The judgment should be reversed, and the information should be dismissed.
Beldock and Ughetta, JJ., concur with Murphy, J.; WeNzel, Acting, P. J., dissents and votes to reverse the judgment and to dismiss the information, in opinion, in which HalliNAN, J.. concurs.Judgment affirmed.