
    The People of the State of New York, Respondent, v. Elizabeth E. Salisbury, Defendant, Impleaded with Thomas E. Fogarty and Another, Appellants.
    
      Crimes — burglary, first degree —judgment of conviction affirmed.
    
    Separate appeals, by the defendants Thomas E. Fogarty and another, from respective judgments of the County Court of Erie county, rendered on the 24th day of November, 1926, convicting the said defendants of the crime of burglary, first degree, and sentencing them to prison. Judgment of conviction affirmed. All concur, except Hubbs, P. J., and Crouch, J., who dissent and vote for reversal and dismissal of the indictment in a memorandum. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.
   Hubbs, P. J., and Crouch, J.

(dissenting). We dissent and vote for reversal upon the ground that there is no proof that the entry was made “ with intent to commit some crime therein.” It is undisputed that the intent of defendants was “ to take the property, such as they might find, for evidence * * * to aid in obtaining this divorce, * * * in order that they might use it later as evidence in court.” That was the claim of the People as stated by the trial judge in his charge to the jury, and it was the only claim. To constitute larceny under the statute, there must be an intent to deprive the owner of his entire ownership in the thing taken, not merely of his possession thereof temporarily. (McCourt v. People, 64 N. Y. 583; Van Vechten v. American E. F. Ins. Co., 239 id. 303, 305; Parr v. Loder, 97 App. Div. 218, 220; People v. Kenney, 135 id. 380; State v. South, 28 N. J. L. 28; Reg. v. Trebilcock, 7 Cox Cr. Cas. 408; 2 Bishop’s Crim. Law [9th ed.], § 841; 9 Halsbury’s Laws of England, 629.) There is no claim here and no evidence to warrant a claim that defendants intended .to appropriate another’s property permanently and wholly. 
      
       See Penal Law, § 402.— [Rep.
     
      
       See Penal Law, § 1290 et seq. — [Rep.
     