(orally). The evidence before the grand jury in support of the indictment against the defendants clearly shows that they received the funds which they are alleged to have misappropriated as subcontractors “ for a public improvement,” and which act was only made a crime on July 1, 1932, several months after the defendants received the money from the contractor. (Lien Law, § 25-b, in effect July 1, 1932.)
The district attorney contends that the defendants may be prosecuted under section 36-b of the Lien Law. This section relates only to a subcontractor misappropriating funds in connection with “ the improvement of real property.”
I am of the opinion that the enactment of section 25-b {supra) is a persuasive argument against his contention, and that section 36-b was not intended to apply to a case where the funds were received by a subcontractor “for a public improvement.”
The motion to set aside the indictment is granted, with leave to the district attorney to resubmit the charge to another grand jury.