
    (74 Hun, 96.)
    PEOPLE v. HALL.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Larceny—What is Subject op.
    On a trial for larceny, it appeared that defendant had agreed to buy a parcel of land from C., free from incumbrances. One B. claimed to hold a lease of a portion of the land, and refused to release it to C. Defendant then made a paroi agreement with B. for a release, and gave her a note for the agreed price of the release. EeU, that the note, being only a provision for defendant to take a title which B. was not bound to give, nor defendant to take, was not the subject of larceny. Pratt, J., dissenting.
    Appeal from court of sessions, Westchester county.
    Gilbert Hall was convicted of larceny in the second degree, and appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    A. J. Adams, for appellant.
    W. Popham Platt, Dist. Atty., for the People.
   BARNARD, 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 token or writing or securities, withholds or appropriates to his own use or that of 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. Oappelman agreed to sell the defendant a parcel of land- free of all incumbrances. A Mrs. Burham claimed to have a 10-years lease of 20 feet of the same. Mrs. Oappelman failed to agree with Mrs. Burham 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. Burham, and they made a verbal agreement to the effect that Mrs. Burham would release the strip to Hall if he got the $1,000 of Mrs. Oappelman. Hall gave the note, which is claimed to be the subject of the larceny, to Mrs. Burham, in these words:

“I hereby agree to pay Mrs. C. M. Burham 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 V. 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 Ms 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 property. It rested on nothing. Mrs. Burham made no written agreement to release, and her verbal promise was void. 3 Rev. St. (7th Ed.) p. 2326, § 8; Rowan v. Lytle, 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. Payne v. People, 6 Johns. 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.

DYKMAN, J., concurs.

PRATT, J.,

(dissenting.) The defendant was convicted at the court of sessions of Westchester county of the crime of grand larceny in the second degree. It seems the defendant carried on some negotiations with one Mrs. Burham concerning some real estate, and came to an agreement which resulted in his giving her a paper in the following words, to wit:

“I hereby agree to pay to Mrs. G. M. Burham the sum of §200 for release of twenty feet of ground on side of building, and this note is to be null and void if Mrs. Emil V. Cappelman does not pay me §1,000.”

This paper was delivered, signed by the defendant, to Mrs. Bur-ham, on the 13th of February,—Saturday. On the following Monday, it is claimed by the prosecution, he obtained it from Mrs. Burham, and destroyed it without her consent. It appeared in evidence that Mrs. Cappelman paid the defendant the $1,000 mentioned in the note or agreement, and that Mrs. Burham tendered the release stipulated for, and demanded the $200. The defendant, by fraud and device, obtained possession of the paper, and destroyed it. It seems clear that this paper was “evidence of debt or contract,” under section 545 of the Penal Code, and that the taking and destroying of the paper by the defendant was with an intent to defraud the true owner of her property, and the use and benefit thereof, and appropriate it to his own use. The evidence is abundant to sustain the verdict, and no legal error was committed upon the trial. It fact, the case was tried with great care and circumspection, and the charge was quite as favorable to the defendant as was possible, under the circumstances. The case shows a wanton and fraudulent destruction of the property of the plaintiff. Judgment affirmed.  