Opinion
June, 1928.
Judgment of conviction of the County Court of Queens county reversed upon the law, indictment dismissed and defendant discharged from custody. In our opinion the record discloses that the complaining witness loaned the $6,700 in question to defendant and thereby parted with both possession and title to the same and that for this reason the defendant cannot be prosecuted under the indictment in its present common-law form. ( People v. Noblett, 244 N.Y. 355.) Leave is hereby granted the district attorney to appeal to the Court of Appeals. The appeal from the order denying appellant's motion for a new trial on the ground of newly-discovered evidence is dismissed. Young, Seeger and Carswell, JJ., concur; Lazansky, P.J., dissents; Kapper, J., dissents and votes to affirm the conviction, adding: Where the entire scheme was felonious, as was proven in this case, there was not a voluntary parting by complainant with his money by which title was vested in defendant and his codefendants. The money was parted with as induced by the felonious act, the alleged borrower then and there intending criminally to appropriate the fund.