People v. Simonelli ( 1929 )

,Peb Curiam.

The judgment of conviction should be reversed and the indictment dismissed, upon the ground that the People failed to establish the commission of the crime charged in the indictment. The transaction between the complaining witness and the corporation represented by the defendant was one of purchase and sale. There was no fiduciary relationship between the defendants and the complaining witness. The evidence clearly discloses that the defendants sold the stock in question to the complaining witness and received part payment therefor. The stock was not bought by the defendants for the account of the complainant, but was sold by defendants’ corporation to him. In, no sense of the word was the defendant shown to be a bailee of the complaining witness. A large amount of incompetent testimony was permitted to be introduced by the People, which would necessitate a reversal of the judgment of conviction and the granting of a new trial, if the People had otherwise established the guilt of the defendant. Inasmuch as we think no crime was proven, it is unnecessary to advert to such error committed at the trial. Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Judgment reversed and indictment dismissed.