People v. Philip Levitt Co.

151 Misc. 484, 273 N.Y.S. 565, 1934 N.Y. Misc. LEXIS 1516

Opinion

Rosalsky, J.

(orally). The evidence before the grand jury in support of the indictment against the defendants clearly shows that they received the funds which they are alleged to have misappropriated as subcontractors “ for a public improvement,” and which act was only made a crime on July 1, 1932, several months after the defendants received the money from the contractor. (Lien Law, § 25-b, in effect July 1, 1932.)

The district attorney contends that the defendants may be prosecuted under section 36-b of the Lien Law. This section relates only to a subcontractor misappropriating funds in connection with “ the improvement of real property.”

I am of the opinion that the enactment of section 25-b {supra) is a persuasive argument against his contention, and that section 36-b was not intended to apply to a case where the funds were received by a subcontractor “for a public improvement.”

The motion to set aside the indictment is granted, with leave to the district attorney to resubmit the charge to another grand jury.