Clarke, J.:
The defendant appeals from a judgment of conviction in the Supreme Court, Criminal Term, of the crime of bribery, the charge being that while holding a public office, to wit, that of chamberlain of the city of New York, he received a bribe to influence his official action.
The defendant on January 3, 1910, became chamberlain of the city of New York, thereby becoming custodian of the funds of the city, with power to determine how and to what extent such funds should be deposited in the several authorized depositories. These depositories, to the number of about 150, are selected by the mayor, comptroller and chamberlain, sitting as a board. How much money shall be kept on deposit in each depository rests wholly in the discretion of the city chamberlain, subject only to the restriction that no more than fifty per cent of the amount of its combined capital and surplus may be kept on deposit in any one depository. In each borough there is one receiving depository, designated as su'ch by the city chamberlain, in which deposits are made daily by each officer and department collecting city revenues. The amounts so deposited are notified to the chamberlain, and he distributes the amounts so received among the other depositories, leaving only a portion thereof on permanent deposit in the receiving bank.
Naturally, in view of this wide discretion in the matter of keeping city funds on deposit, the chamberlain is the subject of great interest to those in control of many of the banks and trust companies on the list of authorized depositories.
■ In the month of February, 1910, the defendant, as chamberlain, designated the Northern Bank of the city of New York [620]*620as the receiving depository of city funds collected in the borough of the Bronx. The daily deposits made in . that bank varied greatly, but at the time of the transactions charged as constituting a crime the permanent balance allowed to remain on deposit averaged about $165,000. This bank was controlled by one Joseph 0. Robin, who owned a majority of its stock and was a director and chairman of its executive committee.
In March, 1910, the defendant became acquainted with William J. Cummins and Joseph B. Reichman, who were largely interested in and virtually controlled the Carnegie Trust Company, also an authorized city depository, of which Reichman was president. Cummins had recently come to New York from another State and was reputed to be a- man of large wealth, interested in many important business enterprises. Reichman was also reputed to be a man of considerable means. Soon after defendant met Cummins and Reichman he made large deposits of city funds in the Carnegie Trust Company, so that by the middle of May the deposit amounted to $1,000,000, at which sum it remained until July, 1910, when it was reduced to $800,000 by withdrawals made by the deputy chamberlain while the defendant was in Europe. It remained at this latter figure until and after the occurrences which led to defendant’s indictment. On June 9, 1910, the defendant went abroad, remaining until about August twentieth. During this time the Carnegie Trust Company was subject to a “run,” resulting in large withdrawals of deposits.
In the late afternoon or early evening of August 22, 1910, a conference took place at defendant’s private law office between defendant, Cummins, Reichman and Robin. The condition of affairs then disclosed was substantially as follows: The officers of the Carnegie Trust Company had reason to apprehend and did apprehend that on the following day that institution would be visited and its condition scrutinized by the State bank examiners. It had been forced to dispose of over $180,000 of city funds held as a portion of its reserve, thereby depleting its reserve by that amount, and it was feared that unless this deficiency was made up and the reserve made to appear infant, the trust company would be closed by the State Super[621]*621intendent of Banks. The business relations between Cummins, Reichman, Robin, the Carnegie Trust Company and the Northern Bank had been quite intimate, and Cummins and Reich-man desired Robin, or the Northern Bank, which he controlled, to lend the Carnegie Trust Company city bonds, or their equivalent in money, in order to make up the deficit in the reserve.
The indictment is based upon what took place at this conference, as testified to by Robin. He was flatly contradicted by the defendant, and this question of veracity between them was practically the only issue of fact submitted to the jury. In considering this appeal we accept their verdict upon this issue.
In substance, Robin’s version of what took place at this interview was, that defendant urged upon him (Robin) that the Northern Bank should loan to the Carnegie Trust Company enough money to avoid the apprehended closing of the company by the Superintendent of Banks, and promised that if this was done, he (Hyde) as city chamberlain would increase the amount of city funds kept on deposit in the Northern Bank by at least as much as that bank loaned to the trust company, at the same time threatening that, in case the Northern Bank refused to make the loan, all of the city’s money deposited with it would be at once withdrawn. On the faith of this promise and under the compulsion of this threat, Robin so arranged that the loan was made.
After the conviction and sentence of the defendant the justice who presided at the trial granted a certificate of reasonable doubt and a stay of execution pending an appeal to this court. The questions upon which the justice entertained doubt were, as formulated by him: “ Whether the facts set out in the indictment constitute a crime, and if the defendant has been sufficiently apprised thereof. Whether under the statute, the acts of the defendant, as found by the jury, constitute the crime of receiving a bribe. Whether the instruction given to the jury defining the crime of bribery, as applying to the acts of the defendant in evidence, was erroneous.”
The indictment contained four counts, but the case was submitted to the- j ary only on the first and second, which are substantially identical in form, except that in one Joseph 0. Robin, [622]*622and in the other the Northern Bank, is named as the giver of the bribe. The crime charged is stated in the first count substantially as follows: That Hyde asked Eobin to cause and procure the Northern Bank to loan to the Carnegie Trust Company the sum of $130,000, it.being then and there “to the personal advantage of and a benefit to the said Charles H. Hyde and the said Carnegie Trust Company ” that such loan should be made, and the making of said loan being “ a valuable favor and service to the said Carnegie Trust Company and to the said Charles H. Hyde.” Then followed allegations that Hyde promised Eobin that if the latter would cause or procure the said Northern Bank to make the said loan, he, the said Hyde, would cause the daily balance of city funds and moneys kept on deposit in said Northern Bank to be thereafter increased in amount, whereupon the said Eobin, pursuant to the said agreement and understanding, did cause and procure the Northern Bank to make a loan of $130,000 to said Carnegie Trust Company, and the said Hyde, in consideration of the making of said loan, and pursuant to said agreement and understanding, did thereupon cause the daily balances of city funds and moneys kept on deposit in said Northern Bank to be increased in amount.
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Clarke, J.:
The defendant appeals from a judgment of conviction in the Supreme Court, Criminal Term, of the crime of bribery, the charge being that while holding a public office, to wit, that of chamberlain of the city of New York, he received a bribe to influence his official action.
The defendant on January 3, 1910, became chamberlain of the city of New York, thereby becoming custodian of the funds of the city, with power to determine how and to what extent such funds should be deposited in the several authorized depositories. These depositories, to the number of about 150, are selected by the mayor, comptroller and chamberlain, sitting as a board. How much money shall be kept on deposit in each depository rests wholly in the discretion of the city chamberlain, subject only to the restriction that no more than fifty per cent of the amount of its combined capital and surplus may be kept on deposit in any one depository. In each borough there is one receiving depository, designated as su'ch by the city chamberlain, in which deposits are made daily by each officer and department collecting city revenues. The amounts so deposited are notified to the chamberlain, and he distributes the amounts so received among the other depositories, leaving only a portion thereof on permanent deposit in the receiving bank.
Naturally, in view of this wide discretion in the matter of keeping city funds on deposit, the chamberlain is the subject of great interest to those in control of many of the banks and trust companies on the list of authorized depositories.
■ In the month of February, 1910, the defendant, as chamberlain, designated the Northern Bank of the city of New York [620]*620as the receiving depository of city funds collected in the borough of the Bronx. The daily deposits made in . that bank varied greatly, but at the time of the transactions charged as constituting a crime the permanent balance allowed to remain on deposit averaged about $165,000. This bank was controlled by one Joseph 0. Robin, who owned a majority of its stock and was a director and chairman of its executive committee.
In March, 1910, the defendant became acquainted with William J. Cummins and Joseph B. Reichman, who were largely interested in and virtually controlled the Carnegie Trust Company, also an authorized city depository, of which Reichman was president. Cummins had recently come to New York from another State and was reputed to be a- man of large wealth, interested in many important business enterprises. Reichman was also reputed to be a man of considerable means. Soon after defendant met Cummins and Reichman he made large deposits of city funds in the Carnegie Trust Company, so that by the middle of May the deposit amounted to $1,000,000, at which sum it remained until July, 1910, when it was reduced to $800,000 by withdrawals made by the deputy chamberlain while the defendant was in Europe. It remained at this latter figure until and after the occurrences which led to defendant’s indictment. On June 9, 1910, the defendant went abroad, remaining until about August twentieth. During this time the Carnegie Trust Company was subject to a “run,” resulting in large withdrawals of deposits.
In the late afternoon or early evening of August 22, 1910, a conference took place at defendant’s private law office between defendant, Cummins, Reichman and Robin. The condition of affairs then disclosed was substantially as follows: The officers of the Carnegie Trust Company had reason to apprehend and did apprehend that on the following day that institution would be visited and its condition scrutinized by the State bank examiners. It had been forced to dispose of over $180,000 of city funds held as a portion of its reserve, thereby depleting its reserve by that amount, and it was feared that unless this deficiency was made up and the reserve made to appear infant, the trust company would be closed by the State Super[621]*621intendent of Banks. The business relations between Cummins, Reichman, Robin, the Carnegie Trust Company and the Northern Bank had been quite intimate, and Cummins and Reich-man desired Robin, or the Northern Bank, which he controlled, to lend the Carnegie Trust Company city bonds, or their equivalent in money, in order to make up the deficit in the reserve.
The indictment is based upon what took place at this conference, as testified to by Robin. He was flatly contradicted by the defendant, and this question of veracity between them was practically the only issue of fact submitted to the jury. In considering this appeal we accept their verdict upon this issue.
In substance, Robin’s version of what took place at this interview was, that defendant urged upon him (Robin) that the Northern Bank should loan to the Carnegie Trust Company enough money to avoid the apprehended closing of the company by the Superintendent of Banks, and promised that if this was done, he (Hyde) as city chamberlain would increase the amount of city funds kept on deposit in the Northern Bank by at least as much as that bank loaned to the trust company, at the same time threatening that, in case the Northern Bank refused to make the loan, all of the city’s money deposited with it would be at once withdrawn. On the faith of this promise and under the compulsion of this threat, Robin so arranged that the loan was made.
After the conviction and sentence of the defendant the justice who presided at the trial granted a certificate of reasonable doubt and a stay of execution pending an appeal to this court. The questions upon which the justice entertained doubt were, as formulated by him: “ Whether the facts set out in the indictment constitute a crime, and if the defendant has been sufficiently apprised thereof. Whether under the statute, the acts of the defendant, as found by the jury, constitute the crime of receiving a bribe. Whether the instruction given to the jury defining the crime of bribery, as applying to the acts of the defendant in evidence, was erroneous.”
The indictment contained four counts, but the case was submitted to the- j ary only on the first and second, which are substantially identical in form, except that in one Joseph 0. Robin, [622]*622and in the other the Northern Bank, is named as the giver of the bribe. The crime charged is stated in the first count substantially as follows: That Hyde asked Eobin to cause and procure the Northern Bank to loan to the Carnegie Trust Company the sum of $130,000, it.being then and there “to the personal advantage of and a benefit to the said Charles H. Hyde and the said Carnegie Trust Company ” that such loan should be made, and the making of said loan being “ a valuable favor and service to the said Carnegie Trust Company and to the said Charles H. Hyde.” Then followed allegations that Hyde promised Eobin that if the latter would cause or procure the said Northern Bank to make the said loan, he, the said Hyde, would cause the daily balance of city funds and moneys kept on deposit in said Northern Bank to be thereafter increased in amount, whereupon the said Eobin, pursuant to the said agreement and understanding, did cause and procure the Northern Bank to make a loan of $130,000 to said Carnegie Trust Company, and the said Hyde, in consideration of the making of said loan, and pursuant to said agreement and understanding, did thereupon cause the daily balances of city funds and moneys kept on deposit in said Northern Bank to be increased in amount.
An analysis of the indictment shows that the charge is that Eobin bribed Hyde to do an official act, to wit, the deposit or agreement to deposit city funds in the Northern Bank, and that the bribe or inducement to do this act was the loan by the Northern Bank to the Carnegie Trust Company of the sum of $130,000, which loan is described in one place as being “ to the personal advantage of and a benefit to the said Charles-H.. Hyde,” and in another place as being “ a valuable favor and service to the said * * * Charles H. Hyde.”
The appellant strenuously argues, as he did at Trial Term, that the indictment is insufficient for lack of specification as to how the loan from the Northern Bank to the Carnegie Trust Company constituted a personal advantage to Hyde. In view of the conclusion at which we have arrived, as hereinafter indicated, we do • not find it necessary to pass upon this objection to the indictment itself, for whatever generality of description may suffice for an indictment it is clear [623]*623that, to justify a. conviction, the People must show by proof upon the trial, as a matter of fact, that the loan was in fact such an advantage to the appellant. In this the prosecution utterly failed, for the People were able to produce no evidence whatever that the defendant received, or was in a position to receive, any personal advantage from the loan from the Northern Bank to the Oamegie Trust Company, and no question was put to the jury * as to whether or not he had received any such personal advantage. It was shown that his relations with Cummins continued close and intimate, and that some weeks after the conversation with Robin, the defendant had received an accommodation in the shape of a loan from the Carnegie Trust Company, but this was not connected in any way with the transaction which constituted the basis of the indictment, and the district attorney does not claim that it constituted the bribe or personal advantage referred to in the indictment, as indeed it could not, for the charge in the indictment is that the bribe, whatever it was, proceeded from Robin, not from Cummins or the Carnegie Trust Company. The People were, therefore, compelled to fall back upon the proposition, for which they now contend, that the mere fact that Robin, for the Northern Bank, acceded to defendant’s request that that bank should make the loan desired by the Carnegie Trust Company, of itself constituted a bribe and was manifestly a personal advantage and thing of value to defendant,, and so the court charged as matter of law. It is quite clear that this position is untenable. It is not to be disputed that what is intended to be described by the words used in the Constitution and the sections of the Penal Law defining the crime of bribery in its various phases, and what is commonly known by the collective word “bribe,” is something more than the personal satisfaction arising from the gratification of a wish. There must be something more flowing to the person whq asks the favor — something of value to him, not necessarily of pecuniary or intrinsic value, but value in the sense of a personal advantage of some sort. The word “ advantage ” must be given its commonly accepted and natural meaning of something accruing ■ to the benefit of the person receiving it. The district attorney, as support for his position and for that taken by the trial court, [624]*624relies upon People ex rel. Dickinson v. Van de Carr (87 App. Div. 386). That case, however, was very different from this. It came before the court upon a writ of habeas corpus, and the only question to be considered was whether there had been any evidence before the committing magistrate, who had held the relator for the action of the grand jury, tending to show that said relator had been guilty of the crime of offering to accept a bribe. The relator, who was a member of the board of aider-men, had offered to barter his vote in that board for the reinstatement by the street cleaning* commissioner of an employee who had been discharged. It was held that a bribe, need not be "anything of actual value, and that there was a fair inference to be drawn from a letter written by the relator that he expected to derive some personal or political advantage from the reinstatement of the discharged employee. It was, therefore, considered that enough appeared to warrant holding him for the action of the grand jury. This fell far short of holding that it would not be necessary to allege in the indictment, or to prove upon the trial, just what advantage would accrue to the relator if his request had been complied with.
To repeat, a bribe is a gift or gratuity (not necessarily of pecuniary value) bestowed for the purpose of influencing the action or conduct of the receiver. It must consist of something real, substantial and of value to the receiver, as distinguished from something imaginary, illusive, or amounting to nothing more than the gratification of a wish or hope on his part. The People wholly failed to prove that the loan by the Northern Bank to the Carnegie Trust Company was of any. personal advantage, benefit or service, either directly or indirectly to the defendant, and, for this ■ reason, there was a failure of proof to justify a conviction, and for this reason the indictment should have been dismissed at the close of the People’s case, or a-verdict directed in favor of defendant at the close of the whole case.
McLaughlin and Scott, JJ., concurred.