18 N.Y. Crim. 65 | New York Court of General Session of the Peace | 1903
The indictment charges the defendant with grand larceny in the first degree in that he induced a named firm of merchants to sell and deliver to his firm on credit a quantity of cloth to be used by his said firm in their business of manufacturing garments, by falsely and fraudulently representing to the said selling firm that his said firm had an order for the garments, which said cloth was to be used to
The indictment is under that part of subdivision i of section 528 of the Penal Code which makes it larceny to obtain property from another “by color or aid of fraudulent or false representation or pretense, or of any false token or writing.”
But section 544 provides that “ A purchase of property by means of a false pretense is not criminal, where the false pretense relates to the purchaser’s means or ability to pay, unless the pretense is made in writing and signed by the party to be charged.”
The alleged false pretense here was not in writing and signed by the defendant ; but the learned district attorney claims that it did not need to be, for the reason that it did not “relate to the purchaser’s means or ability to pay.” What then did it relate to? And if it did not relate to the purchaser’s means or ability to pay, of what consequence was it at all? The defendant has been convicted only because the false representation was the inducing cause of the sale. And how was it such inducing cause? Why, plainly only because it related to the purchaser’s means, ability and prospect of paying when the credit should fall due. If this be not so, it was not the inducing cause at all, but void and harmless. A statement by a manufacturer of the responsible contracts he has on hand for the sale of his manufactures, in order to induce another to sell him on credit goods to use in his manufacture, is certainly relative to his means and ability of paying for such goods. His plant, his stock on hand, his bills receivable, his contracts for future delivery, each and all, show his means and ability to pay his debts as they mature in the future, and go to show what his .general financial condition is.
The learned district attorney supposes the case of the defendant having assigned to the sellers as security a forged
Let the certificate issue.