Lewis, J.
The defendant-appellant, a security salesman, stands convicted of grand larceny in the first degree. According to the indictment the larceny occurred when_the defendant, without the consent of the owner thereof, appropriated to his own use the sum of $600 which had been intrusted to him as bailee or agent by his client, Miss Lillie Happy. At that time the defendant’s business, which he and his wife formerly conducted as a partnership, had been incorporated under the name of “ R. C. Robinson Securities Corporation,” with its principal office at Ithaca, New York.
For several years prior to 1934, Miss Happy, a woman then more than seventy years of age, had dealt with the defendant in the purchase of securities. Her transactions with him were not numerous but involved separate purchases in connection with which she had paid to him amounts which totaled $1,261.50. Of that total sum she testified:
“
He took that to invest for me, and to do with it as well as he could, to bring in the best returns for me.”
Without dwelling on their earlier dealings, we pass at once to a transaction which occurred in September, 1934, a month after the incorporation of the defendant’s business and which immediately preceded the acts for which he has been held criminally responsible. The defendant then had in his possession seventy-five shares of Bankers’ National Investment Corporation stock, owned by Miss Happy, which he used as payment for ten shares of the preferred stock of R. C. Robinson Securities Corporation. The proof of this transaction was afforded by two written memoranda — one in the handwriting of the defendant, which purports to be an agreement by Miss Happy to purchase ten shares of R. C. Robinson Securities Corporation preferred stock
at $100 per share. This memorandum, dated September 15, 1934, bears the name of Lillie Happy printed in pencil, to the left of which and under the printed word
“
witness ” the defendant wrote his initials “ R. C. R.” The other memorandum is also in the defendant’s handwriting and purports to acknowledge receipt from Miss Happy of seventy-five shares of Bankers’ National Investment Corporation stock in payment for “ equal value shares ” of R. C. Robinson Securities Corporation stock. Miss Happy testified that she had no recollection of purchasing ten shares of the stock of the defendant’s corporation or that she had ordered the . defendant to do so.
Upon the trial this transaction was traced through to the preferred stock book of R. C. Robinson Securities Corporation, from which it appeared that the ten shares of preferred stock thus purchased by the defendant for Miss Happy were represented by stub No. 15 from which the corresponding stock certificate No. 15 had been detached. Then followed proof that although stub No. 15, from which the corresponding certificate had been detached, bears the name of Lillie Happy in the defendant’s handwriting, the certificate No. 15, originally attached thereto, had been issued to the defendant “ R. C. Robinson.” When the defendant was asked by his counsel to explain why certificate No. 15 for the ten shares of preferred stock sold to Miss Happy had been issued in his name he testified that, in line with common practice in such transactions, he had issued the stock certificate in his own name to obviate the necessity of his going to Bovina Center, where Miss Happy lived, to secure her indorsement upon the certificate for transfer in the event a sale, exchange or other disposition of the stock should take place.
Such an event did take place shortly thereafter in the form of the transaction which has led to the defendant’s indictment and conviction. On December 31, 1934, when the books of the R. C. Robinson Securities Corporation showed that Miss Happy owned ten shares — or, as the ■record states,
“
$1,000 worth ” — of the corporation’s pre
ferred stock, the defendant informed the witness Dunbar, who was then the assistant treasurer of the corporation, that Miss Happy was in need of money for the repair of a barn or farm buildings and that she “ needed $400 of the stock redeemed.” Thereupon, in accord with the defendant’s direction, a check in the amount of $400 was drawn, payable to his order. Eleven days later, on January 11, 1935, the defendant again called into his office the assistant treasurer and stated to him that Miss Happy
“
needed the $600 balance which was left.” A check in the amount of $600 was then drawn to the order of the defendant who in turn delivered to the assistant treasurer preferred stock certificate No. 15 which bore the defendant’s name. The assistant treasurer then wrote across the certificate the word
“
canceled ” and affixed it to stub No. 15 in the stock book. The $600 check which thus came into the hands of the defendant was at once deposited to the credit of his personal account in which at the time was a balance of $28.39. Against the increment afforded by the deposit of $600, the defendant promptly proceeded to make disbursements for his personal debts.
Miss Happy testified that she owned no bam and that she had never told the defendant she needed money for the repair of farm buildings. When the defendant was questioned by his own counsel, “ Do you know the fact she [Miss Happy] did not have any bam at that time? ” he replied, “ I knew it very well.” And when asked, “ Do you know whether you told him [Mr. Dunbar] she wanted to repair a barn or not? ” the defendant answered, “ No.”
The defendant did not deny that he put to his own use the avails of the check for $600 to which reference has been made. His defense was that at the time the two checks for $400 and $600 were prepared he had two Starrett Investing Corporation bonds which he valued at approximately $1,000, as to which he then made a written memorandum
“
that they were for Miss Happy.” According to his testimony, the memorandum was
“
either attached to or lying with ” the bonds which he left
“
in one of the safes.
I do not remember which. Or possibly in the bank. I did not keep watch of them.” “ Q. And were those bonds still in that office when you left there? A. It was my understanding they were, yes. Q. Had you ever disposed of them in any way? A. I had not.” He also told the jury that he first learned that Miss Happy had not received the Starrett bonds when the indictment upon which he has been convicted was returned against him in November, 1937.
Meantime the affairs of R. C. Robinson Securities Cor-' poration had come under the surveillance of the Attorney-General, who, in an action instituted by him against that corporation and others, secured a court order on October 28, 1935, appointing a receiver who promptly took possession of the property and affairs of the corporation. The receiver testified that although there were several Starrett bonds among the securities of which he took possession under court order, he found nothing to indicate that Lillie Happy had an interest in any of them.
We are told in support of the defendant’s position that the facts outlined above and others too numerous for recital here did not warrant a finding against the defendant of criminal guilt.
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Lewis, J.
The defendant-appellant, a security salesman, stands convicted of grand larceny in the first degree. According to the indictment the larceny occurred when_the defendant, without the consent of the owner thereof, appropriated to his own use the sum of $600 which had been intrusted to him as bailee or agent by his client, Miss Lillie Happy. At that time the defendant’s business, which he and his wife formerly conducted as a partnership, had been incorporated under the name of “ R. C. Robinson Securities Corporation,” with its principal office at Ithaca, New York.
For several years prior to 1934, Miss Happy, a woman then more than seventy years of age, had dealt with the defendant in the purchase of securities. Her transactions with him were not numerous but involved separate purchases in connection with which she had paid to him amounts which totaled $1,261.50. Of that total sum she testified:
“
He took that to invest for me, and to do with it as well as he could, to bring in the best returns for me.”
Without dwelling on their earlier dealings, we pass at once to a transaction which occurred in September, 1934, a month after the incorporation of the defendant’s business and which immediately preceded the acts for which he has been held criminally responsible. The defendant then had in his possession seventy-five shares of Bankers’ National Investment Corporation stock, owned by Miss Happy, which he used as payment for ten shares of the preferred stock of R. C. Robinson Securities Corporation. The proof of this transaction was afforded by two written memoranda — one in the handwriting of the defendant, which purports to be an agreement by Miss Happy to purchase ten shares of R. C. Robinson Securities Corporation preferred stock
at $100 per share. This memorandum, dated September 15, 1934, bears the name of Lillie Happy printed in pencil, to the left of which and under the printed word
“
witness ” the defendant wrote his initials “ R. C. R.” The other memorandum is also in the defendant’s handwriting and purports to acknowledge receipt from Miss Happy of seventy-five shares of Bankers’ National Investment Corporation stock in payment for “ equal value shares ” of R. C. Robinson Securities Corporation stock. Miss Happy testified that she had no recollection of purchasing ten shares of the stock of the defendant’s corporation or that she had ordered the . defendant to do so.
Upon the trial this transaction was traced through to the preferred stock book of R. C. Robinson Securities Corporation, from which it appeared that the ten shares of preferred stock thus purchased by the defendant for Miss Happy were represented by stub No. 15 from which the corresponding stock certificate No. 15 had been detached. Then followed proof that although stub No. 15, from which the corresponding certificate had been detached, bears the name of Lillie Happy in the defendant’s handwriting, the certificate No. 15, originally attached thereto, had been issued to the defendant “ R. C. Robinson.” When the defendant was asked by his counsel to explain why certificate No. 15 for the ten shares of preferred stock sold to Miss Happy had been issued in his name he testified that, in line with common practice in such transactions, he had issued the stock certificate in his own name to obviate the necessity of his going to Bovina Center, where Miss Happy lived, to secure her indorsement upon the certificate for transfer in the event a sale, exchange or other disposition of the stock should take place.
Such an event did take place shortly thereafter in the form of the transaction which has led to the defendant’s indictment and conviction. On December 31, 1934, when the books of the R. C. Robinson Securities Corporation showed that Miss Happy owned ten shares — or, as the ■record states,
“
$1,000 worth ” — of the corporation’s pre
ferred stock, the defendant informed the witness Dunbar, who was then the assistant treasurer of the corporation, that Miss Happy was in need of money for the repair of a barn or farm buildings and that she “ needed $400 of the stock redeemed.” Thereupon, in accord with the defendant’s direction, a check in the amount of $400 was drawn, payable to his order. Eleven days later, on January 11, 1935, the defendant again called into his office the assistant treasurer and stated to him that Miss Happy
“
needed the $600 balance which was left.” A check in the amount of $600 was then drawn to the order of the defendant who in turn delivered to the assistant treasurer preferred stock certificate No. 15 which bore the defendant’s name. The assistant treasurer then wrote across the certificate the word
“
canceled ” and affixed it to stub No. 15 in the stock book. The $600 check which thus came into the hands of the defendant was at once deposited to the credit of his personal account in which at the time was a balance of $28.39. Against the increment afforded by the deposit of $600, the defendant promptly proceeded to make disbursements for his personal debts.
Miss Happy testified that she owned no bam and that she had never told the defendant she needed money for the repair of farm buildings. When the defendant was questioned by his own counsel, “ Do you know the fact she [Miss Happy] did not have any bam at that time? ” he replied, “ I knew it very well.” And when asked, “ Do you know whether you told him [Mr. Dunbar] she wanted to repair a barn or not? ” the defendant answered, “ No.”
The defendant did not deny that he put to his own use the avails of the check for $600 to which reference has been made. His defense was that at the time the two checks for $400 and $600 were prepared he had two Starrett Investing Corporation bonds which he valued at approximately $1,000, as to which he then made a written memorandum
“
that they were for Miss Happy.” According to his testimony, the memorandum was
“
either attached to or lying with ” the bonds which he left
“
in one of the safes.
I do not remember which. Or possibly in the bank. I did not keep watch of them.” “ Q. And were those bonds still in that office when you left there? A. It was my understanding they were, yes. Q. Had you ever disposed of them in any way? A. I had not.” He also told the jury that he first learned that Miss Happy had not received the Starrett bonds when the indictment upon which he has been convicted was returned against him in November, 1937.
Meantime the affairs of R. C. Robinson Securities Cor-' poration had come under the surveillance of the Attorney-General, who, in an action instituted by him against that corporation and others, secured a court order on October 28, 1935, appointing a receiver who promptly took possession of the property and affairs of the corporation. The receiver testified that although there were several Starrett bonds among the securities of which he took possession under court order, he found nothing to indicate that Lillie Happy had an interest in any of them.
We are told in support of the defendant’s position that the facts outlined above and others too numerous for recital here did not warrant a finding against the defendant of criminal guilt. It is said that the transaction which led to the defendant’s indictment left him and his client in the relation of debtor and creditor to be dealt with by civil law without interference by criminal authorities. We must reject such a view, believing as we do, that in the evidence brought together by the prosecutor, which the jury chose to believe, there are the elements of grand larceny, first degree — the application by the defendant to his own use, without the owner’s consent, of funds in excess of $500 belonging to Miss Happy and then being in his control as her bailee or agent. (Penal Law, §§ 1290,1294.) He possessed himself of her funds which she had intrusted to him for purposes of investment; he used those funds without her consent, for another and unrelated purpose — the payment of his personal obligations. What was said in
People
v.
Meadows
(199 N. Y. 1, 6) applies with equal force to the facts now before us: “ The criminal act in this case was committed, and the criminalintent evidenced, when, depart
ing from his duty to use the moneys in paying for the stock, the defendant diverted it to other purposes.”
But it is now suggested that if any money was stolen by the defendant, it was not the money of Lillie Happy but was the money of the defendant’s corporation. The record facts and applicable law afford several answers to such a suggestion but the complete and practical answer is that throughout the trial and in both the opening and the summation by his counsel the defendant admitted that it was
he
who owed Miss Happy money — not the corporation. Indeed the record shows that when the defendant, upon his direct examination, was asked to give a conversation he had with Miss Happy one week before the trial he stated: “ She [Miss Happy] said she would like to have the money that I owed her, and I told her I would like to give it to her. I said ‘ If we can arrange some solution of this thing where we are not going to be all tied up on it, I would be very glad indeed, and will anyway to the best of my ability, see that you get back the money you entrusted to
me.’
* * * At the time I was there I had intended paying her a portion of what
I
owed her and giving her my father’s note, the way we originally talked.” And again when this subject became a matter of cross-examination, the following testimony was given by the defendant: “ Q. How much money do
you
owe Lillie Happy? A. I believe the figure is twelve hundred and some odd dollars. Q.
You
do owe her that money, don’t
youV
A. Certainly
I
do owe it to her. Q. And you said to her ' I will give you the money that you entrusted to
me
’ didn’t you? A. That is correct. Q. You have not done it, have you? A. I have not.” (Emphasis supplied.)
No suggestion was made to the jury on the facts or to the trial justice on the law that the funds appropriated by the defendant belonged to the corporation. In reaching a decision in this case upon the law we may not acquit the defendant by resting a conclusion to that end upon a view as to established facts not shared by the defendant upon the trial.
“
A controversy put out of the case by the parties is not to be put into it by us.”
(Martin
v.
Herzog,
228 N. Y. 164, 167.)
We cannot agree with the defendant’s assertion that his rights were prejudiced by the receipt in evidence of Exhibit 50, a written memorandum prepared by the assistant treasurer in 1935 shortly after the receiver took charge of the corporation’s property and affairs. This item of proof was offered by the prosecution as a means of showing to whom the Starrett bonds belonged of which the receiver took possession. It was prepared by the assistant treasurer who, as a witness for the defendant, upon cross-examination, gave independent testimony from his personal knowledge of the facts contained within the memorandum which had a direct bearing upon the defendant’s claim that he had set aside two of the Starrett bonds for Miss Happy and that before the receiver took possession they had been earmarked as her property. The assistant treasurer testified that he
“
did practically all ” the buying of securities for R. C. Robinson Securities Corporation and that he had the securities in his charge after they were delivered. He had personal knowledge of the bonds in the possession of the corporation at the time of the receivership and stated from memory that the number of Starrett bonds was sixteen — fourteen of which then belonged to John and Mittie Weaver and two belonged to John D. Robinson. He testified that Exhibit No. 50 was prepared by him in November, 1935, as a record of the numbers of the two bonds owned by John D. Robinson and used, with other collateral, in arranging a bank loan for John D. Robinson. The arranging of such loan was not a corporation matter but a personal transaction between the defendant and John D. Robinson. In .view of this testimony by the assistant treasurer and other testimony by the same witness which fully explain facts set forth in Exhibit 50, we do not regard as prejudicial the receipt in evidence of that exhibit.
Nor does the record warrant the criticism of the trial justice which has been made for an alleged failure to submit to the jury as a question of fact whether the relationship between the defendant and Miss Happy resulting from the transaction here involved was that of debtor and creditor. We find in the body of the charge a sufficient presentation of this question to the jury.
Other errors assigned by the defendant have been examined by us with care. In no instance do we find an error which was prejudicial to the defendant’s rights.
The .judgment should be affirmed.