
    Nathan Marcus and Meyer Vessel, Respondents, v. Fidelity and Deposit Company of Maryland, Appellant.
    First Department,
    November 20, 1914.
    Guaranty and suretyship — action upon bond to reimburse employer for funds wrongfully appropriated by employee — evidence — admissions — res gestee —larceny—intent.
    Where the plaintiffs in an action upon the bond of a surety company conditioned for the reimbursement of the plaintiff for loss sustained by “ any act of larceny or embezzlement ” on the part of a collector of rents employed by them, alleged that the collector failed to account and pay over a certain sum which he had wrongfully appropriated to his own use, it is error to allow them to prove the collector’s wrongful intent by testimony of then* agent that the collector, who is now dead, after the event, had said that he used the money.
    Such testimony is not admissible as part of the res gesto because it was not contemporaneous in time with the taking of the money.
    Paper slips in the handwriting of the collector, showing amounts collected by him, are competent evidence as against the defendant.
    The felonious intent with which the money was retained is an essential element of the crime committed.
    Appeal by the defendant, Fidelity and Deposit Company of Maryland, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of June, 1914, affirming a judgment of the Municipal Court of the City of New York, and also from the judgment of affirmance entered thereon in the office of the clerk of the Municipal Court, borough of Manhattan, first district.
    
      Renwick F. H. MacDonald, for the appellant.
    
      Abraham Nelson, for the respondents.
   Scott, J.:

The defendant was surety to plaintiffs upon a bond conditioned for the reimbursement of plaintiffs for such pecuniary loss (not exceeding $1,000) as the employer shall have sustained by “ any act of larceny or embezzlement” on the part of one Thomsen, employed by plaintiffs as a collector of rents.

The complaint alleges: “ That in or about the month of September, 1912, and while still in plaintiff’s employ, as afore- ' said, the said Christian Thomsen collected as rent of said real property, the sum of two thousand six hundred and thirty-two ($2,632) dollars, of which he has accounted to the plaintiffs [for] the sum of two thousand two hundred and seventy-three ($2,213) dollars, leaving a balance of three hundred and fifty-nine ($359) dollars, for which he has failed to account for and pay over to these plaintiffs, and which sum he has wrongfully appropriated to his own use.”

The evidence of the amounts collected by Thomsen consisted of a series of paper slips in his handwriting and delivered by him to an agent of plaintiffs. The agent testified to the amount paid over by Thomsen and the allowance due. him for salary, thus showing the extent of the shortage alleged in the complaint. The paper slips were competent evidence against the surety. (State Bank of Pike v. Brown, 165 N. Y. 216.)

Larceny of the kind charged as having been committed by Thomsen is thus defined: A person who, with the intent to deprive or defraud the true owner of his property * * * or to appropriate the same to the use of the taker * * *:

“1. * * * appropriates to his own use, or that of any person other than the true owner, any money * * *; or,
“2. Having in his possession, custody, or control, as a * * * agent, clerk, trustee, * * * or as a person authorized by agreement * * * to hold or take such possession, custody, or control, any money, * * *, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof,
“Steals such property, and is guilty of larceny.” (Penal Law [Consol. Laws, chap. 40; Laws of 1909, chap. 88], § 1290.)

An essential element of the crime is the felonious intent with which the money is kept back. Such a felonious intent will be presumed when the taker has applied the money to his own use. To prove Thomsen’s intent, plaintiffs’ agent was permitted to testify that Thomsen (who is now dead) had said that he had used it. For what purpose he had used it he did not say. This conversation was in the latter part of the month of September and constitutes the only evidence tending to show a felonious intent on the part of Thomsen.

In our opinion the evidence was incompetent against this defendant. It might have been used upon a criminal prosecution of Thomsen as an admission, but defendant cannot be bound by Thomsen’s admissions after the event and not constituting a part of the res gestee. The conversation is not admissible as part of the res gestee because it was not cotemporaneous in time with the taking of the money, and was not so connected with it as to he considered as a part of the transaction.

The determination of the Appellate Term and the judgment of the Municipal Court must he reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Determination of Appellate Term and judgment of Municipal Court reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  