#### PEOPLE ex rel. WORONOFF et al. v. MALLON, Warden, et al.

(No. 6704.)

(Supreme Court, Appellate Division, First Department.

December 24, 1914.)

1. False Pketenses (§ 26*)—Complaint—Financial Statement.

Penal Law (Consol. Laws, c. 40) § 442, gives to a seller of goods the right to inspect the buyer’s books of account, on his failure to pay’ for the goods whenever the purchase has been made by aid of a written financial statement, signed by the buyer, in which he shall state that he conducts a specified kind of business, and keeps books of account, and declares that the buyer’s failure to produce the books within a prescribed period after notice shall be presumptive evidence that all pretenses relating to the buyer’s ability to pay contained in the statement were false at the time of making them, and were known to him to be false. *Held,**706that a complaint for larceny for obtaining goods on false pretenses as to the buyer’s solvency, alleging that the goods were sold to accused on credit, based on a consideration of his written financial statement, made to commercial agencies, showing his business to be in a solvent condition and describing books of account from which the statements were, made, and that, on his failure to pay, notice was given to produce the books for inspection, with which notice he did not comply, was sufficient.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 31; Dec. Dig. § 26.*]

2. False Pretenses (§ 2*)—Evidence—Presumptions—Statutory Provisions.

Penal Law, § 442, providing that where goods are obtained on a buyer’s financial statement, and on his failure to pay he fails to produce his books within a prescribed period after notice, such failure shall be presumptive evidence that all pretenses relating to his means or ability to pay contained in the statement were false at the time of making them, and were known to him to be so, was not unconstitutional for unreasonableness, but was a valid exercise of the Legislature’s power to provide that, when certain facts have been proven, these shall be prima facie evidence of the existence of a particular fact in question.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 2; Dec. Dig. § 2.*]

3. Criminal Law (§ 393*)—Privilege of Accused Not to Testify.

Penal Law, § 442, providing that a buyer’s failure to pay for goods purchased on a written financial statement, and his failure after notice to produce his books, shall be presumptive evidence that the statement was false, is not unconstitutional, as compelling the buyer, when prosecuted for larceny in obtaining goods on false pretenses as to his solvency, to testify against himself.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.*]

Appeal from Special Term, New York County.

Habeas corpus, on relation of David Woronoff and another, against Peter A. Mallon, as Warden, etc., and others. From a decree dismissing the writ, relators appeal. Affirmed.

The opinion of BISCHOFF, J., at Special Term, is as follows:

The question presented upon this return to a writ of habeas corpus is whether the information before the magistrate sufficed for a case of larceny in obtaining goods upon false pretenses as to the buyer’s solvency. It is set forth in the information that these relators obtained the complainant’s goods on credit; that they were shortly afterward adjudged bankrupt; that the credit for the price of the goods was given them after examination by the complainant of a written statement as to their financial condition, furnished ten months before to commercial agencies, and to which statements relators referred the complainant, “representing that those statements contained the true and accurate condition of their business”; that the statements showed the business to be in a solvent condition, and described books of account from which such statements were made; and that the relators thereafter, upon their failure to pay for the goods, were given notice to produce the books referred to for inspection by the complainant in accordance with section 442 of the Penal Law, with which notice they did not comply.

[1] This statute gives the seller of goods the right to inspect the purchaser’s books of account upon his failure to pay for goods sold “whenever property shall be purchased by aid of a statement relating to the purchaser’s means or ability to pay, made in writing and signed by the party to be charged, and in said statement the party to be charged shall state that he conducts a specified kind of business and keeps books of account of said business,” and further *707provides that the purchaser’s failure to produce the books within a prescribed period of notice “shall be presumptive evidence that each and every pretense relating to the purchaser’s means or ability to pay in said statement contained were false at the time of making said statement and were known to the purchaser to be false.” Giving effect to this presumption, the facts stated in the information contain every element necessary to establish the crime charged; it being apparent from the averments presented to the magistrate that the representations were material, that they were relied upon, and that they were made to induce the delivery of the property to the relators. So far as it is claimed that the reference by the relators orally to the earlier written statement could not be relied upon for the purposes of the charge of larceny, which must be founded upon misrepresentations made in writing (Penal Law, §§ 947, 442), it suffices to say that upon the facts the possession of the property was obtained “by aid of a statement made in writing” (section 442) and “by means of a false pretense made in writing” (section 947). The same question was considered in People v. Levin, 119 App. Div. 233, 104 N. Y. Supp. 647, and the oral statement, as set forth in this information, sufficiently connected the earlier written statement with the relator’s solvency at the time for the purposes of a criminal prosecution within that authority.

[2] The contention that the presumption of fact prescribed by section 442 of the Penal Law is unreasonable, and so unconstitutional, appears to be without merit. As was said in People v. Cannon, 139 N. Y. 32, at page 43, 34 N. E. 759, 762 (36 Am. St. Rep. 668): “It cannot be disputed that the courts of this and other states are committed to the general principle that even in criminal prosecutions the Legislature may with some limitations enact that when certain facts have been proven they shall be prima facie evidence of the existence of the main fact in question. * * * The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact.” Board of Comm’rs, etc., of Auburn v. Merchant, 103 N. Y. 143, 148, 8 N. E. 484, 57 Am. Rep. 705; Reitler v. Harris, 223 U. S. 437, 32 Sup. Ct. 248, 56 L. Ed. 497; Cooley, Const. Limitations (7th Ed.) 409, 524-526. A person’s refusal to produce from his own possession books of account which he has deliberately represented to contain entries supporting the truth of a summary statement of account prepared by him has a very fair relation to the probability that the' summary statement was false. Such a presumption is analogous to and simply an extension of the common-law rule which permits the inference from nonproduction of a document or witness peculiarly available to a party that the writing or testimony would not support the party’s own contention as to the facts. Graves v. United States, 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021; Runkle v. Burnham, 153 U. S. 216, 14 Sup. Ct. 837, 38 L. Ed. 694; Kirby v. Tallmadge, 160 U. S. 379, 16 Sup. Ct. 349, 40 L. Ed. 463.

[3] Nor does this statute compel a party to testify against himself. He is merely required for his better protection to preserve certain evidence of his honesty which he has represented to persons dealing with him to exist. The situation presented is in no way similar to that considered in Matter of Morgan, 114 App. Div. 45, 99 N. Y. Supp. 775, cited for the relators, since there the presumption was declared by the statute to be open to rebuttal only by particular testimony. Here the presumption, reasonably related to the party’s own act or omission, may be met by any competent evidence material to the issue of fact. My conclusion is that section 442 of the Penal Law affords a valid rule of presumptive evidence, and that upon the facts set forth by the complaint the magistrate acquired jurisdiction.

Writ dismissed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

E. Hymes, of New York City, for appellants.

R. C. Taylor, of New York City, for respondents.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

PER CURIAM.

Order affirmed, on opinion of BISCHOEE, J. Order filed.'