Kruse, P. J.:
The defendant appeals from a judgment of the County Court of Monroe county convicting him of the crime of grand larceny in the first degree. He challenges the sufficiency of the evidence upon which the judgment of conviction rests and contends that errors were committed upon the trial prejudicial to him.
Harriet F. Newcomb died September 24, 1913, in the city of Eochester, leaving an estate consisting largely of stocks, bonds and other securities, amounting to several hundred thousand dollars. She had been a resident of the city for many years and during the last ten or twelve years of her life the defendant had been her secretary and confidential agent, was familiar with her affairs and largely transacted her business and for the last eight years of her life he lived in her home. Although it does not very clearly appear, I think it may be inferred from what appears in the record and the undisputed facts stated in the briefs of counsel, that she was upwards of eighty years of age at the time of her death, that she left no descendants, that her husband had died several years before her death, that none of her relatives lived with her, that she had a housekeeper and servants, that her relations with the defendant were intimate and friendly, that he was kind to her and that she trusted him implicitly.
Within a week or so after her death a representative of the Fidelity Trust Company of Eochester, the executor named in her will, called upon the defendant at Mrs. Newcomb’s house and obtained from him certain silverware, jewelry and securi[828]*828ties consisting of stock and mortgages, amounting to approximately $100,000. These securities were taken out of the defendant’s desk. After expressing some surprise to defendant that these valuable papers and securities should be lying loose in the desk, the representative asked him whether there was anything else and defendant said there was not. The representative asked for Mrs. Newcomb’s books of account and defendant said she kept none. He asked for bank books and defendant produced one or two. He asked for canceled checks and the defendant stated that they had been destroyed.
But the defendant was not frank and truthful in making these statements. Later in the day the trust company’s representative went to Mrs. Newcomb’s house again,when the defendant was absent, and discovered not only that there were books of account, but also canceled vouchers, pass books and other miscellaneous records covering transactions for several years, and later it was discovered that there were securities amounting in value, as is claimed, to $100,000, which at one time had belonged to Mrs. Newcomb and for which the defendant had not accounted, among others five bonds of $1,000 each which he afterward sold. It is the misappropriation of these bonds upon which this conviction rests.
After this discovery had been made and was called to the defendant’s attention, he declared to representatives of the trust company that these securities had been given to him by Mrs. Newcomb.
It also appeared that Mrs. Newcomb had apparently conveyed to him on the 30th day of May, 1913, a house and lot situate on North Washington street, in the city of Rochester, and certain Michigan real estate, and according to the defendant’s statement the bonds in question were given to him at the same time.
The defendant contends that his claim is corroborated by the testimony of Myron W. Greene, who was a broker, and negotiated the sale of many of the securities, and was the notary public who went to Mrs. Newcomb’s house at defendant’s request and took the acknowledgments of the deeds, and also by the testimony of the witness Lewis P. Warner, who was a friend, and former partner of the defendant. Greene testified [829]*829that Mrs. Newcomb stated to him at the time he took the acknowledgments that she wanted to give the defendant certain securities, and had given him some. According to Warner’s testimony she told him in February preceding that she had given to the defendant the “ Spencer Transit [Spencer Trask] ” bonds, and he further testifies that he saw the bonds in question in the defendant’s Mill street office on June 3, 1913. The defendant in his testimony before the surrogate in the proceeding for the discovery of assets belonging to the estate of Mrs. Newcomb testified that they were kept in the safe in his office from the time they were bought for her and that he deposited the interest coupons to her credit up to the time of her death; and he also claimed to the representatives of the trust company that there was an agreement between Mrs. Newcomb and him that he should pay the interest to her during her life and also pay all of the household expenses.
It also appeared by the testimony of Quincy Van Voorhis, an old friend of Mrs. Newcomb’s, that he had a conversation with the defendant after her death, in which the defendant stated in substance that Mrs. Newcomb had not given him as much as people supposed; that she had given him the Washington street house and some western lots and $3,000 in her will, and a claim in litigation against some one in New York or Brooklyn of doubtful value, and her claim in the Dean Alvord Company, which was also of doubtful value; and that was all that she had given him, except that he showed witness a paper which purported to be an assignment of $5,000 or $6,000 worth of stocks and told him that it was a verbal understanding between defendant and Mrs. Newcomb that she would give him (defendant) the dividends on the stocks as long as she lived, but Thomas Brown had made a strong demand on defendant for the stocks and he had given them to Brown.
The transaction relating to the conveyance of the real estate is itself not free from suspicion. The defendant had asked the attorney who usually did Mrs. Newcomb’s legal business to prepare a deed of the North Washington street house and lot, but said nothing to him about the Michigan property. The attorney refused to draw the deed, stating to defendant that Mrs. Newcomb was sick and old, and he would not draw any [830]*830deeds to the defendant without orders from her direct. That she was old and infirm at that time clearly appears.
Furthermore, at about the time when it is claimed these alleged gifts were made, Mrs. Newcomb was making codicils to her will, and the defendant is not mentioned in them. The suggestion that Mrs. Newcomb wanted to give the defendant a substantial part of her property, but did not wish to make such provision by will, is not forceful, because she did give to him a legacy of $3,000 by her original will made July 3, 1911, and that gift was not disturbed by either of the subsequent codicils, one of which was made October 11, 1912, and the other August 11, 1913, the last one only about a month before her death.
The will was probated October 10, 1913. The defendant sold the bonds October 15, 1913. Two or three weeks thereafter the discovery proceedings were instituted, and the defendant was examined. About a month later a civil action was brought by the trust company against the defendant, charging him with misappropriating these bonds and other bonds and securities, amounting in all to the value, as alleged, of $100,000. Thereafter, and about Labor Day, 1914, thé defendant left Rochester and went to Canada. He charged his associate in business and his bookkeeper not to disclose his whereabouts. He asked them to send some of his effects to Canada, and finally went to England.
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Kruse, P. J.:
The defendant appeals from a judgment of the County Court of Monroe county convicting him of the crime of grand larceny in the first degree. He challenges the sufficiency of the evidence upon which the judgment of conviction rests and contends that errors were committed upon the trial prejudicial to him.
Harriet F. Newcomb died September 24, 1913, in the city of Eochester, leaving an estate consisting largely of stocks, bonds and other securities, amounting to several hundred thousand dollars. She had been a resident of the city for many years and during the last ten or twelve years of her life the defendant had been her secretary and confidential agent, was familiar with her affairs and largely transacted her business and for the last eight years of her life he lived in her home. Although it does not very clearly appear, I think it may be inferred from what appears in the record and the undisputed facts stated in the briefs of counsel, that she was upwards of eighty years of age at the time of her death, that she left no descendants, that her husband had died several years before her death, that none of her relatives lived with her, that she had a housekeeper and servants, that her relations with the defendant were intimate and friendly, that he was kind to her and that she trusted him implicitly.
Within a week or so after her death a representative of the Fidelity Trust Company of Eochester, the executor named in her will, called upon the defendant at Mrs. Newcomb’s house and obtained from him certain silverware, jewelry and securi[828]*828ties consisting of stock and mortgages, amounting to approximately $100,000. These securities were taken out of the defendant’s desk. After expressing some surprise to defendant that these valuable papers and securities should be lying loose in the desk, the representative asked him whether there was anything else and defendant said there was not. The representative asked for Mrs. Newcomb’s books of account and defendant said she kept none. He asked for bank books and defendant produced one or two. He asked for canceled checks and the defendant stated that they had been destroyed.
But the defendant was not frank and truthful in making these statements. Later in the day the trust company’s representative went to Mrs. Newcomb’s house again,when the defendant was absent, and discovered not only that there were books of account, but also canceled vouchers, pass books and other miscellaneous records covering transactions for several years, and later it was discovered that there were securities amounting in value, as is claimed, to $100,000, which at one time had belonged to Mrs. Newcomb and for which the defendant had not accounted, among others five bonds of $1,000 each which he afterward sold. It is the misappropriation of these bonds upon which this conviction rests.
After this discovery had been made and was called to the defendant’s attention, he declared to representatives of the trust company that these securities had been given to him by Mrs. Newcomb.
It also appeared that Mrs. Newcomb had apparently conveyed to him on the 30th day of May, 1913, a house and lot situate on North Washington street, in the city of Rochester, and certain Michigan real estate, and according to the defendant’s statement the bonds in question were given to him at the same time.
The defendant contends that his claim is corroborated by the testimony of Myron W. Greene, who was a broker, and negotiated the sale of many of the securities, and was the notary public who went to Mrs. Newcomb’s house at defendant’s request and took the acknowledgments of the deeds, and also by the testimony of the witness Lewis P. Warner, who was a friend, and former partner of the defendant. Greene testified [829]*829that Mrs. Newcomb stated to him at the time he took the acknowledgments that she wanted to give the defendant certain securities, and had given him some. According to Warner’s testimony she told him in February preceding that she had given to the defendant the “ Spencer Transit [Spencer Trask] ” bonds, and he further testifies that he saw the bonds in question in the defendant’s Mill street office on June 3, 1913. The defendant in his testimony before the surrogate in the proceeding for the discovery of assets belonging to the estate of Mrs. Newcomb testified that they were kept in the safe in his office from the time they were bought for her and that he deposited the interest coupons to her credit up to the time of her death; and he also claimed to the representatives of the trust company that there was an agreement between Mrs. Newcomb and him that he should pay the interest to her during her life and also pay all of the household expenses.
It also appeared by the testimony of Quincy Van Voorhis, an old friend of Mrs. Newcomb’s, that he had a conversation with the defendant after her death, in which the defendant stated in substance that Mrs. Newcomb had not given him as much as people supposed; that she had given him the Washington street house and some western lots and $3,000 in her will, and a claim in litigation against some one in New York or Brooklyn of doubtful value, and her claim in the Dean Alvord Company, which was also of doubtful value; and that was all that she had given him, except that he showed witness a paper which purported to be an assignment of $5,000 or $6,000 worth of stocks and told him that it was a verbal understanding between defendant and Mrs. Newcomb that she would give him (defendant) the dividends on the stocks as long as she lived, but Thomas Brown had made a strong demand on defendant for the stocks and he had given them to Brown.
The transaction relating to the conveyance of the real estate is itself not free from suspicion. The defendant had asked the attorney who usually did Mrs. Newcomb’s legal business to prepare a deed of the North Washington street house and lot, but said nothing to him about the Michigan property. The attorney refused to draw the deed, stating to defendant that Mrs. Newcomb was sick and old, and he would not draw any [830]*830deeds to the defendant without orders from her direct. That she was old and infirm at that time clearly appears.
Furthermore, at about the time when it is claimed these alleged gifts were made, Mrs. Newcomb was making codicils to her will, and the defendant is not mentioned in them. The suggestion that Mrs. Newcomb wanted to give the defendant a substantial part of her property, but did not wish to make such provision by will, is not forceful, because she did give to him a legacy of $3,000 by her original will made July 3, 1911, and that gift was not disturbed by either of the subsequent codicils, one of which was made October 11, 1912, and the other August 11, 1913, the last one only about a month before her death.
The will was probated October 10, 1913. The defendant sold the bonds October 15, 1913. Two or three weeks thereafter the discovery proceedings were instituted, and the defendant was examined. About a month later a civil action was brought by the trust company against the defendant, charging him with misappropriating these bonds and other bonds and securities, amounting in all to the value, as alleged, of $100,000. Thereafter, and about Labor Day, 1914, thé defendant left Rochester and went to Canada. He charged his associate in business and his bookkeeper not to disclose his whereabouts. He asked them to send some of his effects to Canada, and finally went to England. He was indicted upon this charge in December, 1914, and was extradited and brought back from England to this country early in 1915. Without going into details it is sufficient to say that from the time he left Rochester until he was arrested he was hiding his identity and whereabouts, and the conclusion is irresistible that he did so because of the charge which had been brought against him.
It is unnecessary to further collate the facts and circumstances. The advanced age, confidential relation and circumstances in connection with these various transactions, and the conduct of the defendant after the death of Mrs. Newcomb with reference to these securities, are such as to discredit the defendant’s claim that these securities were honestly acquired by him. The evidence amply sustains the verdict of the jury.
As to the other points, the defendant contends:
[831]*8311. That there is a fatal variance between the allegations of the indictment and the proof. It is urged that the offense proven, if any, was in misappropriating the property which the defendant received as custodian from the owner, Harriet P. Newcomb, and that he could not be convicted of stealing property from the Fidelity Trust Company as its agent, servant and bailee.
There is nothing in this contention, because upon the death of Mrs. Newcomb the title to her property was vested in the trust company, the executor of her will. He may have been guilty of an offense during her lifetime, but the offense of which he was convicted was committed after her death. He secretly kept possession of the bonds, and sold them on the 15th of October, 1913, on which day it is charged in the indictment he committed the offense. This was after Mrs. New-comb’s death, and after the will had been admitted to probate. One of the counts of the indictment charged the offense as having been committed while he was employed in the capacity of servant and agent and bailee of the trust company. The two other counts are in the form of a common-law indictment for larceny, setting forth that the property was that of the Fidelity Trust Company of Rochester. We think there was no variance and that the indictment is in proper form. (People v. Bennett, 37 N. Y. 117; Phelps v. People, 72 id. 334, 357.)
2. It is contended on behalf of the defendant that prejudicial error was committed in rulings upon questions relating to evidence, among others, (a) in receiving testimony of the defendant given upon the discovery proceedings; (b) showing the commencement and pendency of the civil action, and (c) in reading from the pleadings in that case.
As to the first, defendant contends that serious error was committed because, in effect, he was compelled to be a witness against himself. That contention is based upon the provisions of section 2443 of the Penal Law, which provides that no person shall be excused from testifying in any civil action or legal proceeding to any facts showing that a thing in action has been bought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime, but [832]*832no evidence derived from the examination of such person shall be received against him upon a criminal prosecution.
The district attorney contends that defendant was not required to give any testimony in the discovery proceedings; that he could have availed himself of the privilege of refusing to answer, citing Chappell v. Chappell (116 App. Div. 573), and that, therefore, his testimony is to be treated as a voluntary confession under section 395 of the Code of Criminal Procedure. He also contends that no such question was raised on the trial; that most of the testimony was given without objection and such objections as were interposed thereafter were directed to the point that testimony relating to other transactions than the one with reference to the bonds in question was improper; and, furthermore, that in any event prejudicial error was not' committed.
The witness Joseph McLean, the attorney for the trust company, was called as a witness by the prosecution. He testified that the defendant had made declarations to him respecting the bonds in question, and detailed to some extent the testimony given by the defendant in the discovery proceedings. The defendant’s counsel, upon cross-examination, very fully examined him, bringing out the claim which the defendant made with reference to these bonds, and it was not until after the district attorney was reading excerpts from the defendant’s testimony, relating to other securities, that objection was made, and then, aside from the general objection, the specific point was made that only such testimony as related to the bonds in question was competent, and at the close of the reading of the excerpts a motion to strike out all of the testimony except such as referred to these bonds was made, upon the ground that it was incompetent, immaterial and irrelevant to the issues which were being tried.
The point which is now made, that this testimony was incompetent under section 2443 of the Penal Law, was not even remotely suggested upon the trial. That objection should not now be permitted to prevail, even if tenable. (Daly v. Byrne, 77 N. Y. 182, 187, 188; Wightman v. Campbell, 217 id. 479; 1 Wigm. Ev. § 18.) As was said by Judge Folger in Daly v. Byrne (supra, at p. 187): “ The most favorable view of the [833]*833objection for the defendant, is, that it was a general objection. It is a general rule, that objections to testimony, that assign no ground therefor, will be disregarded, unless it clearly appears that the objection, if properly made, would have been decisive of the case, and could not have been obviated. (Levin v. Russell, 42 N. Y. 251.) The rule is based upon the sound notion, that the party should let it be known to the court, and to the other side, what are the real grounds of objection. The other party may then choose to yield to the soundness of them, and to withhold the testimony; or the court, having its attention drawn to the true point, may keep it out of the case. (Fountain v. Pettee, 38 N. Y. 184-186.) The rule as stated in Levin v. Russell (supra) has been, perhaps, a little narrowed in Tooley v. Bacon (70 N. Y. 34) by adding to it ‘ or unless the evidence in its essential nature be incompetent.’ ”
The evidence here was not in its essential nature incompetent. The facts embodied in the testimony were material; only the manner of proving them is involved in the objection now urged, and that objection was not specifically made on the trial.
As to the objection to testimony relating to other securities, we think the transactions were not so unrelated to the one in question as to make the evidence incompetent. (People v. Katz, 209 N. Y. 311; People v. Duffy, 212 id. 57.)
We are also of the opinion that it was proper to show the'pend-ency of the civil action. The complaint charged the defendant with misappropriating the bonds in question and was pending when he left the city and went to Canada and England, secreting his whereabouts. As to the objection which is now urged, that the answer was incompetent under section 523 of the Code of Civil Procedure, what has been said with reference to receiving in evidence the testimony of the defendant upon the discovery proceedings is. largely applicable. Ho such objection was raised on the trial. Furthermore, the record does not show just what parts of the complaint or the answer were read to the jury. And in any event, we are unable to see how the ruling was prejudicial to the defendant. There is nothing in his answer which is harmful or connects him with the crime, except [834]*834possibly it shows his relations to Harriet F. Newcomb and the management of her property, all of which is practically undisputed.
The other objections urged by the defendant need no special comment. We think none of them presents reversible error. It is true, as urged on behalf of the defendant, that a defendant charged with a crime must be prosecuted according to the forms of law, and that his guilt must be established, if at all, by legal evidence. (People v. Pettanza, 207 N. Y. 560.) Upon the other hand, that salutary provision of law should not be overlooked, requiring an appellate court to give judgment" without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Code Crim. Proc. § 542.)
We are of the opinion that the defendant had a fair trial; that there are no errors which require or warrant the granting of a new trial, and that.the judgment of conviction and the order denying a new trial should be affirmed.
All concurred, Foote, J., in a separate memorandum, and De Angelis, J., in a separate opinion, except Lambert, J., who dissented in an opinion.