#### The People, Resp’ts, *v.*Abraham Suydam, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May 16, 1891.)*

Larceny—False pretenses.

Upon an indictment for moneys obtained by false pretenses it appeared that until nearly the end of the transactions the defendant had represented himself as owner of the premises in question; that he finally stated that his aunt owned the properly, but that he had full power to sell. This was false, but upon this assumption of power to sell the bargain was concluded. *Meld,*that the purchasers must have relied upon the truth of this latter statement and not upon the vendor’s ownership or upon his integrity and that it was proper to submit to the jury the question upon what the purchasers did rely.

Appeal from judgment of court of general sessions convicting defendant of the crime of larceny.

*F. B.*House, for app’lt; *McKenzie*Semple, for resp’ts.

*851Barrett, J.

We think it entirely clear that Fay and Stacom were cheated out of their money by the defendant’s false pretense that he had full power and authority from his aunt (who was the Susan D. Brown named in the indictment) to sell the property in question. It may be true that Suydam could have accomplished his purpose without resorting to this false pretense. Fay and Sta-com believed, down to the time when the contract was being prepared, that Suydam was himself the owner of the property, and if he had suffered that to remain in that error, he might have obtained their money without any active misrepresentation. But he preferred to client them in another way, and so, at the last moment, "he disabused their minds of the idea that he was the owner of the property and informed them that the real owner was his aunt, in Philadelphia. Had the matter rested there, it is inconceivable that the transaction should have gone through. Fay and Stacom may have been willing to part with their money upon the delusion that Suydam owned the property and could lawfully contract for its sale. But, as sane business man, they would not have been willing, upon being awakened to the truth, to part with their money to one who confessedly was not the owner of the property, and consequently had no right to sell. Suydam’s disclosure of the true ownership at once changed the entire situation and necessarily closed their purse. To reopen it, the misrepresentation which followed became absolutely essential.

Having said, “ My aunt owns the property,” Suydam was compelled, unless his scheme were to miscarry, to add, “but that need not prevent the consummation of our bargain, for I have *.fullpower la sell.”*And upon this latter assurance, Fay and Sta-com again were ready to close the transaction. They must have relied upon such assurance unless they were willing to throw their money away, and to do so advisedly. It is no answer to say that up to that very moment they relied upon Suydam’s ownership or upon his integrity. Integrity did not confer title, and reliance upon ownership disappeared with the disappearance of the fact. Belief in Suydam’s integrity, indeed, remained as a factor, but only so far as to induce reliance upon the false pretense which followed. It will hardly be claimed that after Fay and Stacom learned that Suydam was not the owner, they would still have contracted with Mm and paid him the money had he told them the whole truth, namely, that he had no authority from his aunt to sell. Nor would they have closed the transaction even if he had remained silent upon the latter head. Silence would have necessitated further inquiry. The statement as to the true ownership, therefore, called for some further assurance as to the defendant’s right to proceed, and that assurance was forthcoming. It was that assurance, and that only, which, at the time and under the circumstances it was given, induced Fay and Stacom to sign the contract and to part with their money.

But it certainly was competent for the jury to take that view of the testimony, and I am unable to perceive any logical basis for the proposition that non-reliance upon the false pretenses so conclusively appears that it was error even to submit the question of *852reliance to the jury. The fact that the contract was not altered to meet the defendant’s disclosure of the real ownership and his declared agency in the matter, is immaterial, except upon the question of fact as to whether in the end Fay and Stacom dealt with the defendant in his own right or as the agent of Mrs. Brown; and upon that question it was fully submitted to, and doubtless considered by, the jury. The defendant’s crime does not depend upon the technical sufficiency of the contract to bind the person falsely represented to be his principal. The intent was not, as the jury have found, to contract with Suydam personally, but as the agent of Mrs. Brown. Such intent naturally followed the disclosure of the agency, and the verdict is fully supported by the probabilities of the case.

Relying, then, upon the false pretense of authority, Fay and Stacom had a right also to rely upon Mrs. Brown’s performance of the contract, however imperfect its form. It was the false pretense, made with the intent to cheat, and relied upon, which moved Fay and Stacom to sign the contract *m the form in which it*was, and thereupon to part with their money to the defendant.

There is nothing in any of the other points presented by the defendant. I think his conviction was just, and should be affirmed.

Yan Brunt, P. J., and Bartlett, J., concur.