W. H. Sawyer Lumber Co. v. Boston & Albany Railroad , 173 Mass. 502 ( 1899 )

Lathrop, J.

The question before us is to be decided according to the law of New York, as shown by its statutes and reports. Pub. Sts. c. 169, §§ 71, 72. And we are limited to those statutes and reports put in evidence in the court below.

By § 528 of the Penal Code of New York, one who commits the crime of larceny or embezzlement, or who obtains the property of another by false pretences, is said to steal such property, and to be guilty of larceny. By § 530, among other things, the obtaining of property unlawfully, in any manner specified in the chapter, of the value of more than five hundred dollars, is declared to be larceny in the first degree. See People v. Dumar, 106 N. Y. 502, 508; People v. Laurence, 137 N. Y. 517.

The plaintiff cited § 533 as evidence of the law of New York that grand larceny was a felony. This section reads, “ Grand larceny in the first degree is punishable by imprisonment for not less than five nor more than ten years.” This section of itself does not show that the offence is a felony. No other sections are referred to which show that the offence of obtaining goods under false pretences is a felony, although very likely it is.

In Andrew v. Dieterich, 14 Wend. 31, it was decided, under an earlier statute which declared the obtaining of goods by false pretences to be a felony, that the owner of the goods was entitled to them as against a purchaser in good faith from the person so obtaining them.

In the case of People v. Lyon, 99 N. Y. 210, the offence was committed prior to the Penal Code, and the judge, while considering the general question somewhat, expressly declined to express an opinion as to the effect of the code.

It is however said in American Sugar Refining Co. v. Fancher, 145 N. Y. 552, 560, “ It is the law of this State, as in England, that title passes on such a sale to the fraudulent vendee, notwithstanding that the crime of false pretences is included in the statute definition of a felony.” It is further said that such a sale is not void, but voidable only, and when avoided the rights of a bona fide purchaser for value are to be protected. It is true that these remarks may be considered as obiter dicta. But in Kline v. Baker, 99 Mass. 253, the court decided what was the law of Pennsylvania on obiter dicta contained in two cases, and refused to consider numerous cases cited by the plaintiff to show that the law in Pennsylvania was otherwise, on the ground that the two cases were the only evidence before the court. See the papers in the case and the briefs of counsel in the Social Law Library.

If, therefore, we regard the latest expression of the law of New York which has been brought to our notice, it is clear that the fact that the commission of the offence of obtaining goods by false pretences, though declared to be a larceny, does not prevent the passing of the title to the goods; and the ruling below was right.

It is unnecessary, however, to decide this point, for apart from this it is manifest under another section of the Code that the person obtaining the goods by false pretences was not criminally liable, as the pretences related to the purchaser’s means or ability to pay, and were not in writing.

Section 544 of the Penal Code reads as follows : “ A purchaser of property by means of a false pretence is not criminal, where the false pretence relates to the purchaser’s means or ability to pay, unless the pretence is made in writing and signed by the party to be charged.”

Judgment on the finding.