People v. Cummins

153 A.D. 93, 28 N.Y. Crim. 380, 138 N.Y.S. 517, 1912 N.Y. App. Div. LEXIS 9225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1912
• Status: Published

Opinions

Laughlin, J.:

The indictment was duly filed on the 20th day of April, 1911, and it contains six counts. The court Withdrew the 8d and 6th counts from the consideration of the jury, arid the other four were left to the jury, and a general verdict of guilty was rendered.

Each of the four counts of the indictment which were left to the jury predicates the larceny on the appropriation by the defendant to his own use of four checks, or the proceeds thereof, of the Nineteenth Ward Bank, made on the 23d day of April, 1910, payable to the order of the Carnegie Trust Company. One of the checks was ori the National Reserve Bank for $5,000, one on the Chase National Bank for $10,000, one on the Mercantile National Bank for $25,000, and one on the Empire Trust Company for $100,000. It does not definitely appear to whom the checks were delivered, but they were presented to the vice-president of the Carnegie Trust Company, and were indorsed:

“ For credit account of W. J. Cummins, “CARNEGIE TRUST COMPANY,

“R. L. Smith,

“Vice-President,”

the indorsement, other than his signature, having been written by other employees of the Carnegie Trust Company, and they were thereupon indorsed by the defendant, as follows:

“ For deposit '

“W. J. CUMMINS,” ■

and deposited to the credit of the defendant’s individual account in the Carnegie Trust Company, in which his balance at the commencement of business on that day was $765.19. The checks were all collected in due course. The 1st and 4th counts charged larceny in the common-law form, and the 2d and 5th charged the defendant with having committed the larceny as agent, bailee or trustee. (See Penal Law, § 1290.) The only difference between the 1st and 4th and the 2d and 5th counts is that in the 1st and 2d it is charged that the property was owned by the Carnegie Trust Company, while in the 4th and 5 th it is charged that it was owned by the Nineteenth Ward Bank.

The theory of the prosecution is that the beneficial ownership of the checks, and of the proceeds thereof, remained in the Nineteenth Ward Bank, and that the moneys were advanced to the Carnegie Trust Company as agent, bailee or trustee to take up certain loans that had been made to Warner Van Norden and Warner M. Van Norden on the security of shares of the capital stock of the Twelfth and Nineteenth Ward Banks, and to hold the collateral thus released until it could be sold by the defendant or pledged elsewhere, and the proceeds used to take up two notes for $70,000 each, one made by Charles A. Moore, Jr., and the other by the Merchants and Manufacturers’ Securities Company, made for it by said Moore as an' officer, each bearing the same date as the checks, upon the discount of which in form the checks were issued. The Van Nordens owned a controlling interest in the capital stock of the Van Norden Trust Company, which controlling interest had been purchased by the defendant and his associates, and also a controlling interest in the capital stock of the Twelfth and Nineteenth Ward Banks, most of which had been pledged with banks and trust companies as security for their individual notes; and for the purchase of this stock the defendant held an option, in form running to him, but in behalf of himself and his associates. These banks were known as Van Norden banks. The younger Van Norden had attained considerable notoriety of a character which it was deemed by the officers and directors of the trust company and the Nineteenth Ward Bank might seriously and prejudicially affect the trust company and these banks. The defendant was a director of the Carnegie Trust Company, and the chairman of the executive committee thereof, and he was likewise a director in the Van Norden Trust Company and the Van Norden banks. The evidence shows that, through a friendly board of directors, he virtually controlléd the Carnegie Trust Company, and he had virtually come into control of the Van Norden Trust Company, but one Bradley Martin, Jr., was, prior to the 19th day of April, 1910, its vice-president and active head, and he was also president of the Nineteenth Ward Bank and, there being no vice-president, in charge of its affairs, and, as the evidence shows, he was in effect the bank. The defendant and other directors of the Carnegie Trust Company had procured individual loans from it, and had obtained loans from it for various industrial and mining corporations in which they Were interested; and complaint of this had been made by the Superintendent of Banks. Early in the year 1910 the Superintendent of Banks had particularly complained of the outstanding loans of the Carnegie Trust Company to directors, and on the morning of the 13th day of April, 1910, he instituted an investigation of the affairs of the Carnegie Trust Company as of the close of business the day before. The Carnegie Trust Company at that time still held two individual notes of the defendant, and the notes of other directors. Within a day or two prior to the 19th day of April, 1910, the defendant represented to Martin that some of the Van Norden notes would be called, and that it was likely that the stock would be thrown upon the public market, which would affect the Van Norden Trust Company and the two banks. According to the evidence in behalf of the People, the' defendant suggested to Martin that he join the syndicate in purchasing the Van Norden stock and that straight unsecured loans be made by the uptown banks, by which was meant the Van Norden Trust Company and the Nineteenth Ward Bank, to the directors to enable them to purchase said stock, and thus prevent the injury to the Van N rden banking institutions which might otherwise result, but Martin declined to join the Syndicate and refused to consent to having the loans made and at the same time offered to invest individually $100,000 in purchasing the stock on the basis of the defendant’s option with which apparently he was familiar.. The regular meeting of the board of directors of the Van Norden Trust Company was held on the nineteenth of April, and according to the evidence in behalf of the People, consisting principally of the testimony of Martin, corroborated in the main by the directors Crockett and Con-don, and Robinson, the secretary, and by Mcllvaine, the attorney for the Van Norden Trust Company, the defendant then renewed the statement that the Van Norden loans were being recalled and there was a discussion with respect to making such loans for said purpose and Martin refused to favor them, stating that he believed that the trust company and Nineteenth Ward Bank would be justified in making the loans to buy the stock for their own protection under the circumstances and agreed to favor loans by the Van Norden Trust Company and Nineteenth Ward Bank to certain directors, the proceeds to be held by a trustee for the purpose of taking up any loans to the Van Nordens, secured by the capital stock of the Twelfth or Nineteenth Ward Banks, payment of which might be pressed, and holding the collateral thus released for the benefit of the Van Norden Trust Company and Nineteenth Ward Bank respectively, as already stated; and this plan was then and there agreed upon. On the other hand, the defendant testified, and he was corroborated in the main by the testimony of Reichmann, who was the president of the Carnegie Trust Company, but who had just been convicted of making a false report to the Banking Department, and to some extent by others, that it was understood that the money was to be loaned outright and unconditionally, but that the purpose of procuring the loan was stated to be to relieve what he termed the “general situation,” by which he apparently meant a condition of financial embarrassment affecting him and his associates individually, and the Carnegie Trust Company and various corporations in which he and his associates were interested, and for which they had procured • loans from these banking institutions, and thus avert danger to their plan to merge the two trust companies and the two banks. At that meeting of the board of directora of- the Van Norden Trust Company, Crockett, who was the defendant’s brother-in-law, was elected president. The only formal action taken with respect to the loans was the adoption of a resolution granting the application for demand loans at six per cent by Director Condon, for $75,000, and Directors Reichmann, Moore, and Crabbs for $60,000 each, “subject to the approval of the- officers.” A meeting of the board of directors of the Nineteenth Ward Bank was held the next day, and as the' directors with two exceptions'were the same as. those of the Van Norden Trust Company, the purpose of the meeting was understood, but it was restated. A similar resolution was adopted, in form granting the application of Directors Condon and the defendant for loans, for $70,000 each, on demand at six per cent “subject to the approval of the officers.” The evidence on the part of the People tends to show that the phrase, “subject to the approval of the officers,” was inserted for the reason that a trustee had not been agreed upon, and that after this meeting of the directors of the Nineteenth Ward Bank and on that day or the next, the defendant suggested the Carnegie Trust Company as trustee, and Martin at once acquiesced in that suggestion. The evidence does not show that there was any agreement that the understanding with respect to the trust should be reduced to writing, but evidence on the part of the People indicates that this was doubtless understood, for it shows that the defendant, on the 21st day of April, 1910, presented to the vice-president of the Carnegie Trust Company for signature, a letter as follows:

“Carnegie Trust Company.

“New York, April 20, 1910.

“Mr. Watkins Crockett,

“President Van Norden Trust Company, Fifth Avenue, New York City:

“Dear Sir.— We acknowledge receipt hereof from the Van Norden Trust Company of $195,000, the proceeds of the following notes:

“ Demand note of Martin J. Condon, $75,000.

“Joseph B. Eeichmann, $60,000,

“Charles A. Moore, Jr., $60,000.

“The above amount to be used by us toward the payment of Carnegie Trust Company stock at $1.75, Nineteenth Ward Bank stock at $2.50, Twelfth Ward Bank stock at $1.

■'We agree to hold in trust for you, or any trustees named by you, the above collaterals as paid for by us at prices mentioned above. ■ Whatever part of the above amount is not employed in the purchase of the above stocks shall be subject to your order at any time.

“Yours very truly,

“RL. SMITH,

“ Diet. E. L. S. “ Vice-president.”

and thereupon he and Moore took this letter, together with demand notes by Reichmann and Moore, for $60,000 each, to Crockett, whereupon Crockett raised the objection that the notes and letter were not in accordance with the understanding at the directors’ meeting, and was informed by the defendant that they were as hu and Martin had agreed upon, and Crockett, after communicating with Martin by telephone, caused two checks to be issued for the amount of the notes, one on thu Van Norden Trust Company and the other on the Chase National Bank, each for $60,000. The vice-president of the Carnegie Trust Company indorsed these checks over to the order of Moore, and they were deposited to the credit of Moore’s individual account with the Carnegie Trust Company, and according to the testimony of the vice-president this was done pursuant to a direction given by Reichmann, the president of the Carnegie Trust Company, who, in the presence of the defendant and of Moore, stated that they were given for the proceeds of individual notes discounted at uptown banks and should have been made payable to the order of the individual. On that day the defendant received a check from Martin for $100,000 with which tv purchase Twelfth and Nineteenth Ward Bank stock to that extent and deliver it to Martin, and ho deposited the check to his individual credit in the Carnegie Trust Company. At the time of this deposit to the credit of Moore’s account his balance was only about $1,000, and on that day he drew a check against it for $100,000 in favor of the Mercantile National Bank, in payment for the stock which the defendant purchased for Martin, and on the 4th day of May, 1910, Moore drew a check to the order of the defendant, which was credited to his said account, for the balance of the $120,000 received from the Van Norden Trust Company. On the 22d day of April, 1910, the third note specified in the letter from the Carnegie Trust Company to the Van Norden Trust Company relating to the trust was presented to the Van Norden Trust Company and a check for the amount thereof to the order of the Carnegie • Trust Company was issued, which the vice-president of the Carnegie Trust Company, by like direction, indorsed in the same manner as he indorsed the others, and it was credited to the defendant in the same account as the others. On the 23d day of April, 1910, a letter addressed to the Nineteenth Ward Bank was signed by the vice-president of the Carnegie Trust Company. - This was identical with the letter to the Van Norden Trust Company, with the exception of the names of the makers and the amounts of the notes. The evidence on the part of the People tends to show that this was presented to Martin, as president of the Nineteenth Ward Bank, together with the two notes, one by Moore and the other by the Merchants and Manufacturers’ Securities Company, to which reference has already been made, and thereupon he caused the checks, with the larceny of which the defendant is charged, to be issued. The vice-president of the Carnegie Trust Company testified that, to his best recollection, the defendant also spoke to him about this letter, but he could not give the conversation. The defendant denied any knowledge or information with respect to either of these letters, and his counsel, in summing up his case, in effect charged that they had no existence at the time, and were fabricated by the prosecution. There is other evidence tending to show that this letter was openly kept by the Nineteenth Ward Bank with these notes, and ■ that its existence was known to others than Martin conducted with the bank. The defendant himself testified that'on the twenty-first day of April the Mercantile National Bank demanded that Van Norden’s loan, secured by Twelfth and Nineteenth "Ward Bank stock, he taken up that day, and that he directed that a ■ letter be written and sent with “ the note ” that Moore and Reichmann had signed, “ to the uptown banks and get the checks down there as quickly as they could, and send up to the Mercantile National Bank and pay them ” $100,000. That testimony evidently relates to the Moore and Reichmann notes, and the payment of the $100,000 was made by Moore’s check as already stated. The fact that the trust letter to the Nineteenth Ward Bank provided that the money, was to be used in purchasing the stock of that bank is an indication that that letter was copied from the first, for the evidence on the part of the People tends to show that it was understood that the hank could not be a party to the purchase of its own stock, and that the, funds advanced by the Nineteenth Ward Bank were to be used to purchase the stock of the Twelfth Ward Bank, and to accomplish that purpose were in one instance to be first used to release certain stock of the Carnegie Trust Company. The jury were fairly warranted in finding that the defendant dictated these letters, or directed their dictation, and had full knowledge with respect thereto. The fact that they do not .conform in all respects to the resolutions is immaterial. Neither Eeichmann nor Moore was a director of the Nineteenth Ward Bank. The only object of . having the board of directors adopt the resolutions was to conform to the requirements of law with respect to loans to directors. In addition to the moneys deposited to the credit of the defendant, as already stated, there were deposited to his credit two further items, aggregating the sum of $2,468.48, prior to May 12, 1910, on which day his balance had been reduced to $26.06. The $100,000 deposited to his credit on April 21, 1910, really represented the money received from the Van Norden Trust Company, for he-allowed $100,000 of that to be appropriated to buy stock for Martin, and he appropriated Martin’s check. On the very day his account was increased by the $100,000 deposited, one of his individual notes held by the Carnegie Trust Company, amounting with interest to $49,915.84, and an individual note of Eeichmann, so amounting to $30,388.33, which had been discounted by the Carnegie Trust Company, and which were carried on its books as unsecured, but in fact 190 shares of the Carnegie Trust Company stock was held as security for the latter note, and released by its payment, were charged up to the defendant’s account on the books of the Carnegie Trust Company. On April 23, 1910, after the defendant’s account was credited with the $140,000 in question, it was debited with $11,115.83, consisting of three checks in payment of another note held by the Carnegie Trust Company against him, and a note held by it against Moore, carried as unsecured, but in fact secured by 100 shares of the Carnegie Trust Company stock, which was released by its payment, and a note made by one of the companies in which the defendant was interested and held by the Carnegie Trust Company; and on the same day his account, was charged with another check for $49,527.50, in payment of an individual note of Condon, carried by the Carnegie Trust Company as unsecured, but secured by 300 shares of its capital stock. On April 28, 1910, the defendant’s account was debited with $39,013.66, consisting of two checks in payment of his note, and a note of Reichmann, held by the Nineteenth Ward Bank, the payment of which released 100 shares of the Twelfth Ward Bank stock and 250 shares of the Carnegie Trust Company stock. It was also claimed by the defendant, on controverted evidence, that the payment of his two notes, and the note made by one of his companies, released Other Carnegie Trust Company stock. On April 22, 1910, the defendant’s account was debited with a check for $9,151.66, given to the National Reserve Bank in settlement of a note made for the Van Nordens by Lazalle, Matthews & Co., releasing collateral consisting of 19 shares of Nineteenth Ward Bank stock, and 40 shares of the Twelfth Ward Bank stock, and certain bonds; and on May 2,1910, with a check for $35,000, in payment of a note made by one of the Van Nordens, and held by the Fourth National Bank, thereby releasing 224 shares of Nineteenth Ward Bank stock. Martin was not connected with the Carnegie Trust Company, and had but general knowledge of its affairs. The People contend that the emergency with which the defendant was confronted, owing to the investigation of the Carnegie Trust Company by the Banking Department, and to his financial embarrassment in other directions, furnished the motive, and that when he found that he could not obtain straight loans, and that Martin insisted upon there being a trustee, he conceived the idea of having his own company, which he dominated, appointed trustee, with the purpose of thus enabling him to obtain the money and to retire these notes, as he did before the investigation by the Banking Department was finished, and to meet other obligations. He impressed Martin with the importance of immediate action to take up the Van Norden loans, stating to him and to the directors of the Van Norden Trust Company that they were being called for payment. On the day he received this money from the Nineteenth Ward Bank he was subpoenaed to testify before the Superintendent of Banks two days later, and on the examination was asked about the Carnegie Company directors’ notes, and stated that those to which reference has been made had been paid.

None of the collateral released by the. use of these funds was held by the defendant for the account or use of the VanNorden Trust Company, or the Nineteenth Ward Bank, nor did he. account for any part of it to the Carnegie Trust Company. He used it as if it were his own in securing and 'redeeming his individual obligations, and those of his associates, and of the corporations in which he and they were interested. During the presentation of the People’s case, it appeared by a statement of counsel for the defendant that he would contend that the defendant did not use these funds for his. individual benefit, but that he received them for the purpose of protecting certain loans, and that one Lyman, “ as trustee,” was to hold the collateral “ in lieu of this money,” and offered to give the district attorney a list of the stock claimed to have been acquired under this arrangement, and a statement with respect to the disposition of the stock; and it appears that he subsequently did this. The fact that some of the fund was used for the purpose of taking up Van Norden loans lent plausibility to this contention, and the People subsequently traced the use of the collateral released by the use of these funds as far as they were traceable. Some of this evidence was received over the defendant’s objection and exception. We think that it was entirely competent as bearing on the intent of the defendant, which was an important element of the crime, and on his motive as well. Although the trust letters were not strictly accurate, according to the testimony, it is impossible to satisfactorily explain them on any other theory than that this money was advanced by the Nineteenth Ward Bank for a particular or special purpose, and that it retained the beneficial ownership, merely parting with possession in trust, or on an agency to use the funds for a specified purpose. The defendant points to uncontroverted evidence showing that no entry or record was made by the Nineteenth Ward Bank with respect to the alleged trust agreement, and to the fact that upon the books of the bank the loan was entered and carried in all respects as if it were an unconditional loan of money on the purchase or discount of a note, and when complaint was later made by the Superintendent of Banks to the effect' that the discount of these notes had reduced, the Nineteenth Ward Bank reserve below the the amount required by law, its president answered that the makers' of the notes had been called upon to make payments thereof, and the Nineteenth Ward Bank did call upon the makers, and not upon the Carnegie Trust Company, to make payments, and a payment of $8,000 was made by the maker of each note and furthermore that the interest was regularly paid by the makers, The People say in answer to this contention, that it was expected at the time that the transaction would be temporary, and that Martin was assured by the defendant that ohe Hill, who was then in Europe, would soon return and buy the securities, which is borne out by Martin’s testimony; that the defendant and his associates controlled the corporate maker of one of the notes; and that the maker of the other was an associate of his and that, therefore, everything that was done is explainable on the theory that it was' intended to have it appear in form by the records that these were straight loans while as a matter of fact such was not the real transaction; and as further evidence that the real transaction was not, as entered, the discount of the notes, the People draw attention to the fact that the checks were not drawn to the makers but to the Carnegie Trust Company, which is in harmony with the trust letters. The defendant relies on an assignment of the two notes, which was “without recourse” by the Nineteenth Ward Bank to Mr. Phipps, Martin’s father-in-law, January Y, 1911, as showing that it claimed to own the notes. This assignment was with other securities and it evidently was a step in furtherance of merging the Nineteenth Ward Bank and Fourteenth Ward Bank into the Securities Bank and is of but little value in, determining the controverted question of fact with respect to occurrences nine months before. The defendant also draws attention to the fact that, on the People’s theory, the directors of the Nineteenth Ward Bank, of which he was one, violated the law. We refrain from express; ing an opinion as to whether the defendant, or any of the officers or directors of the banks or trust companies, contemplated violating or violated the provisions of section 664, subdivision 5, of the Penal Law, forbidding a banking institution to use its funds, other than surplus profits, in the purchase of its own capital stock, or of section 665, subdivisions 2 and 3, with respect to making false reports, or omitting material entries in books or reports for it might reflect upon parties who have not been heard. Suffice it to say that that would not aid the defendant, for while, as his counsel claims, those who took part may be personally estopped from claiming that the transactions were other than they appear by the records, there is no such estoppel as against the People. It is also contended that the court should have advised an acquittal on the ground that what was done was done openly and in good faith, and in the belief by the defendant that he had title to the proceeds of the checks, and that, therefore, by virtue of. the provisions of section 1306 of the Penal Law, he was not guilty of larceny. The undisputed evidence shows that this transaction was not open and above board. The checks on their face show that they were intended for the Carnegie Trust Company, and yet no entry was made on the records of the Carnegie Trust Company, either of the trust, or of that company having any interest in the checks. There is no force in the contention that the Nineteenth Ward Bank is chargeable with the knowledge which it might have obtained by examining the vouchers when they were returned, that this money passed to the defendant’s individual account. The crime had been committed at that time, and the bank was not required to examine the return vouchers for such purpose. It is also contended that if there be any evidence that the defendant committed the crime, it was not of a character and quality to warrant its submission to the jury, within the rule declared in People v. Ledwon (153 N. Y. 10). There is no merit in' this contention. The evidence not only required the submission of the case to the jury, but it preponderates in favor of the defendant’s guilt.

Error is also predicated on the denial of a motion to take the 4-th and 5 th counts, which charge larceny from the Nineteenth Ward Bank in the common-law form and as its agent, bailee or trastee, from the jury, «and on an exception to the charge leaving it to the jury to find whether the defendant was guilty under these counts. The evidence warranted the jury in finding that the defendant induced the Nineteenth Ward Bank to consent that the Carnegie Trust Company act as trustee, having previously formed the intention of misappropriating the proceeds of the funds in the manner in which he did'; and if so, that constitutes larceny by what is known as trick and device, within the authorities. (Smith v. People, 53 N. Y. 111; Loomis v. People, 67 id. 322; People v. Morse, 99 id. 662; People v. Miller, 169 id. 339; People v. Neff, 122 App. Div. 135; affd., 191 N. Y. 210.) The contention that the defendant was merely a bailee to take the checks to the Carnegie Trust Company, and that since that was intended and was done there can be no crime is not tenable. The indictment does not confine the charge to stealing .the checks. It expressly embraces the proceeds as well, which distinguishes the case from People V. Cruger (102 N. Y. 510), in which it was held that a conviction on an indictment for stealing a diamond pin, title to which the owner intended to part with, could not be had on proof that the defendant appropriated the proceeds. No question was raised on the trial with respect to the form or sufficiency of the indictment. The four counts were proper, and there was evidence bearing upon the commission of the crime as charged in each count. It was for the jury to say on the evidence whether the defendant originally formed the felonious intent, or whether he came into the possession of the proceeds intending to carry out the trust, or to apply the funds as intended and subsequently while having the custody thereof, as agent, bailee or trustee misappropriated them. .The court did not require the jury to specify the counts on which they found the defendant guilty, and no request was made for a direction with respect thereto, depending on how they found on the evidence.' It is too late now for the defendant to complain of a general verdict, even if it would have availed him if timely raised, which is doubtful. (See People v. Kerns, 7 App. Div. 535; Rosenstock v. Metzger, 136 id. 620; Guenther v. People, 24 N. Y. 100; Hope v. People, 83 id. 418.) The case of People v. Cohen (148 App. Div. 205) in so far as it holds that a conviction on a count charging larceny as at common law cannot be sustained on proof that the owner, who intended to part with his title, was induced to do so by false pretenses, is not in conflict with our view of this case. Under the clear charge by the learned judge, the jury were plainly informed that if these checks were issued as a loan of money on the discount of the notes, the defendant should be acquitted, and should be convicted only upon the theory that the money was advanced in trust, or as a special deposit, to purchase the Van Nor den stocks, which were then to be held by the Carnegie Trust Company in trust for the Nineteenth Ward Bank, as stated. The gist of the crime was stealing the money and it is immaterial whether the jury reached the determination that the moneys belonged to the Nineteenth Ward Bank, or the Carnegie Trust Company, for it was only necessary, to warrant a conviction, for them to find that they did not belong- to the defendant and that he stole or misappropriated them. (People v. Mead, 125 App. Div. 7; affd., 200 N. Y. 15; Hope v. People, supra, 423.) It was proper to charge the crime in different forms in the indictment and then on the evidence it was for the jury to determine whether if the defendant stole the money, he stole it by trick and device, or while acting as agent, bailee or trustee thereof. (See People v. Davis, 56 N. Y. 95; People v. Sullivan, 173 id. 122.) Many other alleged errors are assigned as grounds for reversal, but they are all without substantial merit, and only one is of sufficient importance to be stated and discussed in the opinion.

The learned counsel for the defendant contended at the outset that the constitutional rights of his client had been invaded, and that the indictment should have been dismissed, or a nolle prosequi entered, or a new trial granted, and that on a new trial all evidence relating to transactions, concerning which the defendant was compelled to testify before the grand jury, be excluded. The defendant was arraigned on the indictment and pleaded not guilty on the 21st day of April, 1911. Thereafter, and on the same day, he was subpoenaed to appear before the grand jury which indicted him, as a witness on an investigation then pending against Charles H. Hyde, the city chamberlain. He obeyed this subpoena, and on appearing was informed by the assistant district attorney that the grand jury was not then investigating any charge against him, but only against Hyde, and that, except in so far as the law with respect to bribery of a public official compels a witness to testify and grants him immunity from prosecution, he had a right to decline to answer on the ground that it would tend to incrimi-' nate him in some other manner than on the charge of bribery which the grand jury was investigating. The district attorney then asked the defendant if he understood that the proceeding upon which he was called to testify was one against Hyde for accepting a bribe, and that section 381 of the Penal Law provides that any person offending against the provisions of the chapter of the Penal Law relating to bribery and corruption, is a competent witness against any other person so offending and- may be compelled to attend and testify, but that the testimony so given “shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying,” and that a person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and may plead or prove the giving of such testimony in bar of such indictment or prosecution, and he answered in the affirmative. After answering preliminary questions, the witness invoked the protection of the Constitution, and refused to testify further. The minutes of the grand jury at this point show the following:

“ Q. Now the district attorney of the county makes this statement to you, Mr. Cummins.”

The stenographer then reads to Mr. Cummins as follows: “ Now, Mr. Cummins, for the sake of the record, I want to say this, that except so far as your testimony given here and now may concern Mr. Hyde and him alone, the district attorney of this county stipulates that such testimony which you may give here to-day in this proceeding' shall not be used against you in any way, shape or manner. Notwithstanding that stipulation and assurance, and notwithstanding the provision of 381 of the Penal Law, do you still refuse to answer % Mr. Cummins: Yes.” He would not even say whether he declined to answer on the ground that the answers would incriminate or tend to degrade him. A number of questions with respect to a conference with one Robin and said Reichmann and a conference with Hyde, and a request of Robin for a loan by the Northern Bank to the Carnegie Trust Company, on the understanding that Hyde, as city chamberlain, would deposit city funds with said bank, and a later conference, all of which he declined to answer. He was then taken before the court, and the proceedings before the grand jury were read, and the court ruled that the questions were proper, and that further refusal on the part of the witness to answer would be regarded as a contempt; and thereafter he answered them and other questions of like import. When his further examination was then about to be postponed until a later date, for which he had been subpoenaed, and he was asked in substance if that would be convenient for him,,he answered,

■ “Yes, because lam subpoenaed Monday, and if there is [sic] any other questions I would be glad to answer them, because I have been given permission now.” When the examination was resumed his attitude had evidently undergone a change, for he then refused to testify, excepting with respect to the particular questions he had been ordered to answer, and he specifically declined to answer whether the Carnegie Trust Company needed $130,000 to make its reserve fund sufficient under the law at the time referred to. when he was asked about endeavoring to get a loan from the Northern’ Bank, on condition that Hyde deposit an equal or greater amount of city funds with it. He thereupon declined to answer numerous questions relating to the same transactions on the ground that they were not the particular questions he had been directed to answer, and that his answers would incriminate and degrade him; but finally he consented to answer, and stated that on or about the 22d day of August, 1910, at an interview between Robin and Eeichmann, it was arranged that the Northern Bank would loan $180,000 to the Carnegie Trust Company, and that he expressed to Eobin his appreciation therefor, and arranged by telephone to have Eobin meet Hyde at the latter’s office, and a few minutes later joined Eobin, Eeichmann and Hyde there.

In the course, of this examination the defendant repeatedly refused to answer questions on the ground that they had been already answered, and when asked if he refused on the ground that the answers. might incriminate or degrade or disgrace him, he said, “ There is ho chance to degrade me or incriminate me on this.” He was also asked about an attempt to procure a loan for himself, for some of his associates, and for concerns in which he was interested, from the National Reserve Bank, the Hungarian-American Bank, the Empire Trust Company, the Savoy Trust Company and The Trust Company of América on condition that he would obtain for them deposits of city funds, and he declined to answer. On being- taken before the court again he was directed to answer, and, on reappearing before the grand jury, he was asked and testified with respect to these matters, and with respect to requesting the city chamberlain to deposit municipal funds with the Madison Trust Company, the Twelfth Ward Bank, the Nineteenth Ward Bank, the Carnegie Trust Company and the Fourth National Bank. When the indictment was moved for trial the defendant moved for its dismissal, on his affidavit charging that compelling him so to testify was a violation of his constitutional rights. His testimony before the grand jury and an affidavit of the assistant district attorney, who conducted the examination, showing in substance that nothing was disclosed by the defendant’s examination that was not already known to the district attorney, and that no use had been made of it in preparing the case for trial, were presénted to the court and the motion was denied. That ruling manifestly was right. Even if the defendant, after the indictment was found, was compelled to testify in violation of his constitutional rights, that was no ground for dismissing the indictment. His only remedy was to refuse to answer and sue out a writ of habeas corpus, to have his rights authoritatively determined or to object to the use of his testimony or any evidence taken from him on any trial against him. We agree with the contention of the learned counsel, who filed a brief on the constitutional question, that the provision of section 6 of article 1 of the Constitution of the State of New York that “ No person shall * * *" be compelled in any criminal case to be a witness against himself,” which is identical with the provision of the 5th amendment to the Federal Constitution, was designed, not only to protect every person against being directly compelled to testify, and the use of his testimony against himself, but also against being compelled in any judicial proceeding or action, civil or criminal, whether directed against him or another, either as a party or as a witness, to give or disclose any evidence or information by which evidénce may be obtained for use against him with respect to any criminal offense, unless he has been given full and complete immunity against prosecution therefor, and this court, in People ex rel. Lewisolm v. O'Brien, which, however, arose on habeas corpus (81 App. Div. 51; affd., 116 N. Y. 253), following the decisions of the United States courts, construing the corresponding provision of the Federal Constitution, and decisions of the highest courts of the sister States, construing similar constitutional provisions, adopted and applied the rule, notwithstanding the decision in People ex rel. Hackley v. Kelly (24 N. Y. 14), which the Court of Appeals, in affirming our decision, .overruled. Any testimony forced from the defendant or evidence obtained from him before the grand jury over his constitutional objection, was, therefore, inadmissible, and, if received over proper objection, it would be the duty of the. appellate court to set aside the conviction. (People v. Gillette, 126 App. Div. 665.) In the case at bar no testimony given by the defendant before the grand jury, or evidence obtained from him either voluntarily or involuntarily, was offered or received in evidence. There was offered and received in evidence independently and without referring to his testimony before the grand jury, evidence with respect to his transactions with the Eational Reserve Bank, the Savoy Trust Company, the Hungarian-American Bank, the Fourth national Bank, and the Fourteenth Street Bank, concerning which he was interrogated before the grand jury; but this was after his counsel had upon the trial, as has been stated, given the district attorney a statement in writing of his transactions with these various banks in so far as they related to the fund in question and the collateral released by the use thereof, and after his counsel.had stated to the court that he proposed, to trace all of these matters. The only objection interposed to this evidence was that it was immaterial and irrelevant. This did not bring to the attention of the court the constitutional objection urged on the appeal. Moreover, the evidence was both relevant and material, for it tended to shew the defendant’s motive and intention in originally obtaining the checks and their proceeds. Furthermore, the record shows that the learned trial justice did not, in receiving this evidence, intend to rule that it did not come within the constitutional protection afforded to the defendant, for later on, when this specific objection was interposed, evidence of that nature was excluded. It is not claimed that after this ruling any motion was made to strike out the other evidence. The argument in behalf of the defendant on the constitutional question goes to the extent that if the defendant was compelled to give any. testimony in violation of his constitutional' rights, the People are thereby precluded from proving the facts with respect to which he was interrogated, even though they were in.possession of the facts before he was examined, for it has not been shown that the district attorney used the information which he obtained by the examination of the defendant. That would extend the construction of the Constitution far beyond any authoritative decision, and would in my opinion contravene public policy. If this contention were sustained, then every time a mistake is made by a prosecuting officer in examining a witness, whose evidence discloses that he has committed a crime, or by a court in erroneously ordering a witness to answer a question in a civil or criminal proceeding or action, and the commission of a crime is'thus revealed, the witness is immune from prosecution, upon the ground that the commission of the crime, or the evidence thereof, or means by which it could be proved without directly using the evidence improperly drawn from the witness, might not have been otherwise discovered. The theory upon which a witness in an action or proceeding, civil or criminal, in the absence of a special statutory enactment requiring him to answer and giving him full immunity, is not required to answer, and if erroneously so required, is discharged on a writ of habeas corpus from any prosecution for contempt, is that notwithstanding the constitutional provision which protects him, in any prosecution for the crime, against his testimony being offered in evidence, he may nevertheless be prejudiced by being compelled to disclose information which will enable the prosecution to obtain other witnesses or evidence against the use of which the Constitution would not protect him, and upon which he may be convicted, (Counselman v. Hitchcock, 142 U. S. 547, 564; People ex rel. Lewisohn v. O’Brien, supra.) It was entirely competent, therefore, to prove by other witnesses or evidence the transactions concerning which the defendant testified before the grand jury. It is not contended that the district attorney was authorized to grant the defendant immunity, and it is evident that the defendant did not rely on the offer made by the district attorney. This indictment had first been found against the defendant, and numerous other indictments were pending against him. Of course, the district attorney did not intend to use the defendant as a witness against Hyde and dismiss these indictments, and the defendant had no reason to believe that such was his intention. There is no evidence that the promises made by the district attorney to the defendant, even though not binding on the People, were violated either in letter or in spirit.

The defendant was properly convicted and the judgment should be affirmed.

Ingraham, P. J., and Scott, J., concurred.