
    The People of the State of New York, Respondent, v. Salvatore Majorana, Appellant.
    Second Department,
    February 7, 1913.
    Crime —larceny — obtaining money by false representations.
    Where a person wishing relief from service in a foreign army relies upon the statement by another that he can and will obtain such relief and for the proposed service pays money to the other person the receipt of the money does not constitute a crime, and a conviction upon an indictment charging two counts, one the larceny of the money and the other the obtaining of the money by false representations, should be reversed.
    
      Appeal by the defendant, Salvatore Major ana, from a judgment of the County Court of Queens county, rendered on the 6th day of November, 1911, convicting him of the crime of grand larceny in the second degree.
    
      Samuel Wechsler, for the appellant.
    
      Matthew J. Smith [W. J. Creamer with him on the brief], for the respondent.
   Thomas, J.:

The defendant was convicted upon two counts in an indictment, one charging larceny of sixty dollars, and one alleging that the money was obtained by false representations. The complainant, wishing relief from service in the Italian army, relied upon defendant’s statement that he could and would obtain it, and for his proposed service paid him the money. There was no larceny, as the complainant intended to vest the title in the defendant and did so. There was no false representation, as the defendant assumed to state no fact, present or past. (People v. Miller, 169 N. Y. 339.) The assurance that he would perform the service was a promise, and that he could do it was a matter of opinion. Neither sustains the count. (People v. Miller, supra; People v. Blanchard, 90 N. Y. 314.) The defendant is such a cheat as the law cannot punish.

The judgment of conviction should be reversed and a new trial ordered.

Burr and Rich, JJ., concurred; Hirschberg and Woodward, JJ., concurred in result.

Judgment of conviction of the County Court of Queens county reversed and new trial ordered.  