
    The People, Resp’t, v. Gilbert Hall, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Larceny—Note.
    A note, given in consideration for a lease of real property, where no written agreement to release has been given, is not the subject of larceny.
    Appeal from a judgment of conviction for the crime of larceny.
    
      A. J. Adams, for app’lt; W J. Platt, for resp’t. '
   Barnard, P. J.

The defendant was indicted for larceny in the second degree and convicted. The statute reads as follows:

“ A person who, with intent to deprive or defraud a true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person, either takes from the possession of the true owner or of any other person, or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false tdken or writing or securities, withholds or-appropriates to his own use or that any other person, from the true owner, any money, personal property, thing in action, evidence of debt or contract, or articles of value of any kind, steals such property, and is guilty of larceny.”

The facts are as follows: One Mrs. Cappelman agreed to sell the defendant a parcel of land free of all encumbrances. A Mrs. Burhans claimed to have a ten years’ lease of twenty feet of the same. Mrs. Cappelman failed to agree with Mrs. Burhans for the price of a release of her claim. To free herself from her difficulty she agreed to pay back to Hall $1,000 of the $1,275 which was the cost of the place. Hall then went to Mrs. Burhans and they made a verbal agreement to the effect that Mrs. Burhane would release the strip to Hall if he got the $1,000 of Mrs. Cappelman. Hall gave the note, which is claimed to be the subject of the larceny to Mrs. Burham in these words:

I agree to pay Mrs. C. M. Burhane the sum of $200 for a release of twenty feet of ground on side of building; and this note is to be null and void if Mrs. Emil Y. Cappelman does not pay me $1,000.

“ Gilbert Hall.”

Mrs. Cappelman paid Hall the $1,000. Hall again went to Mrs. Burham and asked to see the lease. The requirement was refused by Mrs. Burham, and he was sent to the clerk’s office to see it. He again returned and took the release to show, as he said, to his lawyer. Upon his return he asked Mrs. Burham for the note. She first refused to get it, but finally did get it, and Hall snatched it from her hand and destroyed it. There were two witnesses present besides the parties, Burham and Hall. Hall asserted that Mrs. Burham had no lease. He testifies that there was no lease on the lot which Mrs. Burham held. The note , or paper was not proper. It rested in nothing. Mrs. Burham had made no written agreement to release, and her verbal promise was void. 2 R. S., 2326, § 8; Rowen v. Little, 11 Wend., 616; Odell v. Montross, 68 N. Y., 499.

The note was only a provision by Hall to take a title which Mrs. Burham was not bound to give nor Hall to take. Such a paper is not the subject of larceny. Paine v. The People, 6 J. R., 103.

Mrs. Burham has lost no property right actual or contingent. She has given no deed or release. She cannot be compelled to give any such paper. She ought to have shown her lease if she had one. She could not claim the $200 unless she gave the consideration, and it was not the spirit and intent of the agreement that Hall should pay $200 for a release which rested on nothing except the bare possession of Mrs. Cappelman’s property. It is not necessary to place the decision on this ground, because the note was of no value for lack of mutuality in the agreement to release.

The conviction should therefore be reversed and a new trial granted.  