203 A.D. 35 | N.Y. App. Div. | 1922
The defendant was indicted for grand larceny in falsely and fraudulently representing that the Schnell Realty Company, of
The defendant then established, by the uncontradicted evidence of disinterested witnesses, that the Schnell Realty Company held, by assignment, a contract for the purchase of the property from Johanna Bach, the owner; that to enable him to close the title, the defendant, acting for the Schnell Realty Company, borrowed from a witness, Herman Gettner, who acted for the Winare Holding Company, the sum of $1,750; that Gettner required that the property should be conveyed to the Winare Holding Company as security for the loan; that the title was closed under the contract held by the Schnell Realty Company; that the consideration, about $5,600, over and above mortgages on the property, was paid by defendant, and that the conveyance was made to the Winare Holding Company according to the agreement. This was the condition of the title when the defendant obtained $3,000 from complainant.
The only question of false representation submitted to the jury was as to the ownership of the property. The court charged the jury that if the defendant, when he represented that he owned the property, honestly meant that he had an equitable title thereto, and if the jury believed the witnesses who testified that he did have an equitable title, they should acquit; but, on the other hand, if they should find that when the defendant told the complainant that he owned the property he intended her to understand, and she did understand, that he had a “ legal, marketable and record title ” to the property and “ had the right to convey a marketable title to her,” then if he did not have such a title, they might convict. To this the defendant excepted, calling the court’s attention to the fact that there was no evidence that the defendant said that he had a legal, marketable and record title thereto, and that the indictment charged that neither the defendant nor the Schnell Holding Company had any title thereto nor any right to convey any interest therein.
It was established by evidence which under well-recognized rules (Hull v. Littauer, 162 N. Y. 569) neither the court nor the jury could disregard, that the Schnell Realty Company was the assignee of the vendee of an executory contract by the owner for the sale of the property. It was, therefore, in equity the owner
The judgment should be reversed on the law and facts, and a new trial ordered.
Kelly and Manning, JJ., concur; Kelby and Young, JJ., concur in the result, on the ground, that the charge was erroneous in that it permitted the jury to convict if they found that the defendant did not have a record and marketable title, even if he had a legal title; that the issue was whether the defendant stated to Mrs. Trimmer that he owned the property, and intended thereby to have her believe that he had the legal title thereto, and that she so understood.
Judgment of conviction by the County Court of Kings county reversed on the law and the facts, and a new trial ordered.