Per Curiam.

The indictment upon which defendant has been convicted contains thirty counts, fifteen charging theft as bailee and agent, the balance, that sort of theft labeled and prosecuted prior to 1942, as obtaining property by false pretenses. It is with these latter counts that we are concerned.

In this State, before the 1942 amendment of section 1290 of the Penal Law — as at the common law — the crime of obtaining property by false pretenses could not be predicated upon a promise or upon an expression of intention not meant to be fulfilled. (See People v. Blanchard, 90 N.Y. 314, 324; People v. Rothstein, 180 N.Y. 148, 152.) The new larceny law (Penal Law, §§ 1290, 1290-a; L. 1942, ch. 732), it is true, as the district attorney observes, was aimed at eliminating the subtle and confusing distinctions that had previously differentiated the various types of theft. It was not, however, designed to, and did not, broaden the scope of the crime of larceny or designate as criminal that which was previously innocent. Consequently, upon the facts here presented, the trial court should have charged, as requested, that a conviction could not be based upon "intention" or upon "a state of facts not then in existence", and that, to convict, the jury must find that "defendant falsely misrepresented an existing fact" — for, as instructed, the jury was free to return a verdict of guilt based upon evidence of conduct never regarded as criminal in this State.

There must, therefore, be a new trial, and, since that is so, we call attention to section 1290-a of the Penal Law which permits proof of false representation or pretense only if there is allegation thereof in the indictment.

The judgments should be reversed, and a new trial ordered.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.

Judgments reversed, etc.