This case comes before this court on writ of error. The said Carl Lesser was jointly indicted with one Charles H. Melville, for obtaining property by false pretenses, and was tried upon such indictment, at a Court of Sessions held in and for the city and county of New York, convicted and sentenced to the State prison for the term of two years.
The purchase of the jewelry to the value of $255, was made on the 28th day of August, 1877, at which Melville stated in the presence of Lesser, “ I will go and bring the money.” After a short time he returned bringing a check, of which the following is a copy:
“No. 756. New York, August 19, 1877. [Check stamp.]
“ The Chemical National Bank of the city of New York.
“ Pay in current funds to C. H. Melville or bearer, two hundred and fifty-five dollars.
$255. AUGUST P. STEINBACH.”
Indorsed: ‘ O. II. Melville.’ ”
This check was offered in payment for the goods, and Rosa Bradenbuck, who made the sale, remarked that the check was *671dated the following day, to which Melville replied, “ Yes, it is too late to go to the bank.” It was then half-past three o’clock. Both Melville and Lesser said that the check was good and that Steinbach had a dusiness. The check was presented at the Chemical bank on the morning of the twenty-ninth of • August, and it was ascertained that there were no funds to pay it and that no such person as August P. Steinbach was known there, or had ever had an account with the bank. The check proved worthless and Steinbach could not be found. The transaction was a gross fraud and the punishment deserved. But the prisoner had a right to insist that it shall not be administered contrary to law, and in this he is right. It will be observed that this was not a purchase to be paid for at a future day, but at the time; so it was clearly understood by all the parties. Melville said, “ I will go and bring the money,” and went away, but soon thereafter returned with the check, tendered it, saying it was “ good; ” attention being called to its date, he remarked that it was so dated, because it was out of bank hours. From the evidence it cannot be doubted, but that all the parties understood that the check was drawn upon a fund then deposited in the bank, and not to depend upon the state of an account at a future day. Every circumstance justifies this inference. If this purchase had been made, and nothing said in regard to the time of payment, and the check had been accepted, a very different case would be presented for determination. The facts of this case fairly construed, establish a false representation in regard to an existing fact. The goods were not purchased upon a pretense that they would be paid for at a future day, nor that the money to meet the check, would be deposited at the bank at some future time, but, on the contrary, that the check was then good and the money on deposit to pay the same. Suppose the check had been, by mistake, dated the twenty-ninth of August, could there be a doubt but that the error could be explained, and the instrument declared as of the same effect as if correctly dated ? Should a more stringent rule be adopted in favor of a person who has been guilty of a gross fraud, and against an innocent party, who has been induced by such fraud to accept the check in question, under the representations and pretenses above mentioned, as the substitute for money then due, and not to become payable at a future *672day ? The case of Rex v. Parker (7 Car. and P., 825), where the prisoner purchased a watch and chain on the twenty-seventh of December, and gave his chpck drawn upon a British bank in payment, dated sixth of January following, post-dated for his own convenience. He was convicted and the same was sustained upon a count of the indictment charging that the prisoner falsely pretended that the check was a good and valid order for twenty-five pounds of the value of twenty-five pounds.
This decision fully sustains the conviction in the case at bar, and we discover no substantial reason for disturbing it. And' the same should be affirmed and a new trial denied.
Davis, P. J., concurred. Present — Davis, P. J., and Ingalls, J.Judgment affirmed.