The defendant was convicted upon two counts in an indictment, one charging larceny of sixty dollars, and one alleging that the money was obtained by false representations. The complainant, wishing relief from service in the Italian army, relied upon defendant’s statement that he could and would obtain it, and for his proposed service paid him the money. There was no larceny, as the complainant intended to vest the title in the defendant and did so. There was no false representation, as the defendant assumed to state no fact, present or past. (People v. Miller, 169 N. Y. 339.) The assurance that he would perform the service was a promise, and that he could do it was a matter of opinion. Neither sustains the count. (People v. Miller, supra; People v. Blanchard, 90 N. Y. 314.) The defendant is such a cheat as the law cannot punish.
The judgment of conviction should be reversed and a new trial ordered.
Burr and Rich, JJ., concurred; Hirschberg and Woodward, JJ., concurred in result.
Judgment of conviction of the County Court of Queens county reversed and new trial ordered.