
    The People of the State of New York, Respondent, v. James H. Forrester, Appellant.
   Judgment of the County Court, Queens County, convicting appellant of the crime of grand larceny in the first degree, reversed on the law and the facts and a new trial ordered. The evidence allows findings that the appellant, a building contractor, agreed to make an alteration and addition to the complaining witness’ house for $2,000; that he received $1,400 on account; that he did some work and furnished some materials but did not complete the job; that the complaining witness expended additional sums of her own to have other persons complete the job; that appellant did not pay some of the materialmen who furnished materials for the job on his order, and that some of the funds received by appellant from the owner were used by appellant for purposes other than those of this job. There is no evidence, however, of the value of the work actually performed and the materials actually furnished by appellant. We are of opinion that it was error to submit to the jury the question of determining whether or not appellant had an intent to perform the construction contract at the time that he received the $1,400 on account. (People v. Karp, 298 N. Y. 213.) Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.  