
    SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,
    May 24, 1907.
    THE PEOPLE v. LOUIS LEVIN.
    (119 App. Div. 233.)
    Grand Larceny—Second Decree—Obtaining- Goods by False Pretenses—-Written Statement to Commercial Agency—Penal Code § 544.
    A conviction under § 544 of the Penal Code for larceny in obtaining goods by means of written false representations as to solvency, may be based upon prior written statements made to a commercial agency and stated by the defendant to be true when called to his attention by a seller at the time of sale. Under such circumstances the statements as to solvency are not oral and the defendant is not absolved because his subsequent declarations as to the present truth of his former written statements were not in writing.
    Appeal by the defendant, Louis Levin, from a judgment- of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 26th day of May, 1905, convicting the defendant of the crime of grand larceny in the second degree.
    
      Henry M. Goldfogle, for the appellant.
    
      Robert 0. Taylor, for the respondent.
   Lambert, J.:

The appellant has been convicted of the crime of grand ' larceny in the second degree in obtaining goods, of the firm of Meyer & Co. by means of false and fraudulent representations respecting his solvency. No question is raised as to the sufficiency of the indictment, and the rule is well established by authority that in cases of this character, where the intent is a fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds about the same time, and so similar in other relations that the same motive may reasonably be imputed to them all. (Weyman v. People, 4 Hun, 511; affd., 62 N. Y. 623; Mayer v. People, 80 id. 364 and note at p. 373; People v. Everhardt, 104 id. 591, 595; Shipply v. People, 86 id. 375, 380; People v. Kellogg, 105 App. Div. 505, 519; Commonwealth v. Robinson, 146 Mass. 571, 577.) In the Kellogg case, decided in this department, the case arose under section 528 of the Penal Code and clearly establishes the competency of the evidence in the present case.

The principal errors going to the merits of the case urged by the defendant upon this appeal are that the credit was induced and given, not upon the signed written statement of the defendant, as required by section 544 of the Penal Code, but upon oral statements; and the second is that the signed credit statement of December, 1902, cannot be made the basis of a crime for false pretenses occurring in March, 1903. In my opinion these propositions are without merit. There is no question under the evidence that the defendant did make in writing and sign a financial statement to be published, and the same was published in Dun & Co.’s commercial reports for the purpose of inducing credit in December, 1902. The alleged false representation inducing the complainant to part with the goods, was not the defendant’s verbal declaration of his ability to pay, but his false representation that the report published by Dun & Co. was true at that time; that he was even in better condition. The report was called to his attention and he was asked if it was true, and 'he said that it was. Being asked to make a present written statement he refused to do so on the ground that he could not take the time to make an inventory, and the complainant parted with his goods upon the false representation that the written statement signed by the defendant in December, 1902, was true in March, 1903, about three months later. The offense of larceny at common law is established by proof on the part of the prosecution showing that the defendant obtained possession of the property by some trick, fraudulent device or artifice, with the intention at the time of subsequently appropriating it to his own use. (People v. Miller, 169 N. Y. 339, 16 N. Y. Crim. 281.) Section 544 of the Penal Code is a modification of the common-law rule of evidence and it is to be understood as effecting no greater limitation upon the law than is required by its language. The provision of the section relied upon is 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.” Cullen, J., in commenting upon this provision in People ex rel. Corkran v. Hyatt (172 N. Y. 187, 17 N. Y. Crim. 30), suggests that this “was doubtless dictated by the knowledge that criminal charges of false pretenses are often instituted in reality to compel the payment of debt, and are easily fabricated,” and this is undoubtedly the reason of the rule established by the Legislature. It has no relation, however, to the situation here presented. The defendant had made a written statement knowing that it was to be published in a commercial report; he knew that credit was given or withheld upon the basis of such reports so published. This statement was called to his attention and he falsely represented that the statement as made and published was true at the time the transaction here involved was under negotiation. It was this false statement which induced the complainant to part with his goods. It was not a false representation of his means or ability to pay that the defendant made verbally. It was a false representation as to the then truth of a former written statement. This is a very different thing from making a mere oral statement that he is worth a given sum of money, or that he is able to pay. “ It was doubtless the intention of the Legislature,” say the court in People v. Rothstein (180 N. Y. 148, 150), in discussing this provision of the Penal Code, “ to require direct representations of the defendant’s means or ability to pay to be in writing. If he states that he is worth so much in money, has so much on investment, and so much due him from solvent debtors, or any other representations bearing directly on his ability to pay, they must be in writing. -There are, however, many cases referring to oral statements that relate to an existing fact, inducing a sale or parting with the possession of personal property, and consequently, constituting a false pretense, that will sustain an indictment and need not be in writing.”

This seems to us to be such a case. It is conceded that if the defendant had purchased the goods in December, 1902, the complainant relying upon the statement, the defendant would have been guilty. Four months later the defendant had his attention called to this report as made for the purpose of inducing credit, and he represented that the statement was then true; that he was in even better condition. This was a false pretense relating to an existing fact and it would be a miscarriage of justice to hold that the defendant was absolved because of the fact that his subsequent declaration as to the then truth of his former statement was not in writing.

The judgment should be affirmed.

Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.

Judgment affirmed.  