#### The People of the State of New York, Plaintiff, *v.*Harry S. Bretton, Defendant.

Second Department,

May 29, 1913.

Crime — grand larceny, second degree — Penal Law, section 1290 — obtaining money by a false pretense.

A defendant who pleads guilty to an indictment charging him with grand larceny, second degree, in that with an intent to deprive the complainant of her property and appropriate it to his own use, she having answered an advertisement requesting the services of a governess, he falsely stated that he was authorized by his sister, a resident of another State, to engage such governess on condition that she would advance moneys to him to pay her railroad fare to the residence of the alleged sister, which representations were known to be false, and “ by color and aid thereof ” feloniously obtained money from the complainant, is not entitled to an arrest of judgment upon the ground that the facts charged do not constitute a crime.

Such representations are not promissory only, being accompanied by a false statement that the defendant’s sister resided in the foreign State and needed the services of a governess.

Motion in arrest of judgment.

*Eugene N. L. Young,*for the motion.

*John Hetherington, Assistant District Attorney,*opposed.

Jenks, P. J.:

The defendant pleaded guilty to an indictment for grand larceny in the second degree, and now moves for arrest of judgment. The ground of the motion is that the facts charged do not constitute a crime. The unusual procedure of making the motion in this court is explained by reference to *People*v. *Bretton*(144 App. Div. 282) and *People*v. *Bretton*(156 id. *342904) decided April 11, 1913). The defendant by his plea of guilty admitted that, with intent to deprive and defraud Matilda Baoux of. her property and to appropriate the same to his use or that of some other unknown, he did feloniously, fraudulently and falsely represent and state to said Baoux, in answer to an advertisement requesting the services of a governess, that he was authorized by his sister, represented to be a resident of Florida and in need of the services of a governess, that he would engage the said Baoux as such governess at $50 per month on condition that Baoux would advance $50 to him to pay for her ticket to the place of the residence of his alleged sister in the said State of Florida; that all of these representations and statements were false and untrue and so known by defendant at the time of their making, and “by color and aid ” of these false and fraudulent statements, advertisement and representations, which the said Baoux believed and upon which she then and there relied, the defendant obtained, feloniously and fraudulently, the said $50 from Baoux.

The point made by the defendant is that the statements were promissory in their nature and hence no indictment would He, under the familiar rule. (See *People*v. *Miller,*169 N. Y. 351.) But the promissory representation that the defendant would engage Baoux as a governess for his sister was accompanied by a statement of existing facts, namely, that defendant’s sister then resided in Florida and then needed the services of a governess. This case, then, is within the principles of *Thomas*v. *People*(34 N. Y. 351), recognized and approved in *People*v. *Rothstein*(180 id. 151), of *Watson*v. *People*(87 id. 567) and of *People*v. *Jefferey*(82 Hun, 409). (See, too, 2 Bishop New Grim. Law, §§ 419-427.)

We are cited, however, to *Banney*v. *People*(22 N. Y. 413). The facts in that case are similar somewhat to those in the case at bar. Banney promised Hock employment if Hock would deposit $100 as security , and there was a statement that the defendant had employment which he could give to Hock, but the court, per Comstock, Oh. J., commented that ‘£ this was obviously of no importance without the contract which was made.” The doctrine of *Banney’s*case has not escaped criticism. (See *People*v. *Winslow,*39 Mich. 505, per Cooley,

*343J.; *2*Bishop New Grim. Law, § 427; Clark & Marshall Law of Crimes [2d ed.], 532, notes; Notes of Commissioners David Dudley Field, William Curtis Noyes and Alexander W. Bradford in the Penal Code of the State of New York, reported complete by the Commissioners of the Code, 1865, pp. 223-225; Bishop New Crim. Law, *supra.)*But *Ranney’’s*case is not an authority in the case at bar. The words of the statute in Ranney’s time described the actas perpetrated “by color of any false token or writing, or by any other false pretence.” (2 R. S. 677, § 53.) The present statute reads: “A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person: 1. 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.” (See Penal Law, § 1290.) I think that the representation of the existing facts in this case was at least within the words “or aid.” Aside from the admission arising from the plea of guilt (See *Thomas*v. *People,*34 N. Y. 351), it seems clear that the inducement for Raoux to part with the fifty dollars was not alone in the promise to secure employment as a governess with his sister, but also in the representation that the defendant’s sister lived in Florida and needed a governess there, for the fifty dollars was paid for a ticket of passage to that place. Without the representation of these existing facts, the fifty dollars surely would not have been paid to the defendant for the purpose described. It was the pretense and the promise that moved Raoux to part with this money. Consultation of the note of the Commissioners *(supra)*shows that the proposed statute (§ 623 of the Report, *supra)*read “by color or aid of any false token or writing, or other false pretense,” in order to meet the judgment in *Ranney*v. *People (supra).*After expressing the doubt as to the soundness of that decision, the Commissioners say: “But conceding the decision in *Ranney*v. *People*to be a correct exposition of the Revised Statutes, it calls for a modification of the law. Under the language employed in the text, it will be. sufficient that the false assertion co-operated with other influences to induce *344the prosecutor to act; that it aided the prisoner to perpetrate the fraud.” The suggestion, if not the source of the present statute, is embodied in it.

The motion is denied.

Present—Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.

Motion denied.