Giannetto v. General Exchange Ins. Corp.

• Citation: 200 N.Y.S.2d 238,10 A.D.2d 442
• Parties: Richard P. GIANNETTO, Plaintiff-Respondent, v. GENERAL EXCHANGE INSURANCE CORPORATION, Defendant-Appellant.
• Decision Date: 05 May 1960
• Court: New York Supreme Court — Appellate Division

Page 238

200 N.Y.S.2d 238

10 A.D.2d 442

Richard P. GIANNETTO, Plaintiff-Respondent, v. GENERAL EXCHANGE INSURANCE CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

May 5, 1960.

MacFarlane, Harris, Martin, Kendall & Dutcher, Rochester, for defendant-appellant (Delon F. Mousaw, and Donald C. Summers, Rochester, of counsel).

Cohen, Goldman, DiPasquale & Schwartz, Rochester, for plaintiff-respondent (Samuel DiPasquale, Rochester, of counsel).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and HENRY, JJ.

HALPERN, Justice.

The defendant insured the plaintiff against the loss of his automobile 'by theft or larceny'. This form of policy covered all types of larceny defined in the statute (Block v. Standard Insurance Company of New York, 292 N.Y. 270, 54 N.E.2d 821, 152 A.L.R. 1097). In an action upon the policy, the plaintiff's proof established these facts: One Alfieri, a used car salesman, obtained possession of the automobile from the plaintiff by representing to the plaintiff that he would sell the automobile as the agent of the plaintiff, use the proceeds to pay the lien of the General Motors Acceptance Corporation and turn over the surplus, if any, to the plaintiff. The plaintiff signed the statement of transfer on the back of the automobile registration certificate in blank and gave it to Alfieri, with the understanding that it would be used to transfer title to a purchaser of the automobile. Subsequently, Alfieri, without the consent of the plaintiff, filled in his own name in the transfer statement and registered the automobile in his own name. The automobile has disappeared; neither the plaintiff nor the General Motors Acceptance Corporation has been able to determine what disposition Alfieri made of it. The jury returned a verdict in favor of the plaintiff and, from the judgment entered upon that verdict, the defendant appeals.

The plaintiff claimed upon the trial that the proof sustained a finding of larceny in either of two forms: (1) the obtaining of possession by false pretenses; (2) embezzlement or the appropriation of property by a bailee.

Both theories were submitted to the jury. The court correctly charged the jury with respect to the second theory, bailee larceny or embezzlement. However, the court was induced by the defendant's counsel to submit the theory of larceny by false pretenses upon too narrow a basis. The court charged that 'To constitute the crime of larceny by false pretenses it must be established that * * * Alfieri made a false representation of an existing fact' and that 'there must exist an intentional false statement concerning a material matter of fact'. This charge made it virtually impossible for the jury to find a larceny by false pretenses under the circumstances of this case since the only false representations proved were representations of a promissory character, relating to Alfieri's future conduct. The court's charge as to this point was erroneous. The proof warranted the inference that, at the time Alfieri made the representations, it was his intention not to carry them out but to appropriate the automobile to his own use. Upon a finding that Alfieri had obtained possession of the automobile in this manner and had then appropriated it, a case of common-law larceny by trick and device would have been made out (People v. Laurence, 137 N.Y. 517, 33 N.E. 547; People v. Miller, 169 N.Y. 339, 62 N.E. 418; People v. Noblett, 244 N.Y. 355, 155 N.E. 670; People v. Stiller, 255 App.Div. 480, 7 N.Y.S.2d 865, affirmed 280 N.Y. 519, 19 N.E.2d 923; Rex v. Pear, 2 East, P.C. 685, 1 Leach 213; Rex v. Semple, 2 East, P.C. 691, 1 Leach 355; People v. Robinson, 107 Cal.App. 211, 221, 290 P. 470, 474; 2 Wharton's Criminal Law (12th ed.), § 1207; 52 C.J.S. Larceny § 32, p. 828; 32 Am.Jur., Larceny, §§ 29-32).

The case of People v. Karp, 298 N.Y. 213, 81 N.E.2d 817, which was urged upon the trial court by the defendant's counsel and which led it to give the charge quoted above, dealt with the obtaining of title, as distinguished from mere possession, by false pretenses. It is only in such a case that it must be established, in order to constitute the crime, that the wrongdoer falsely represented an existing external fact and not merely his intention or the state of his mind. The crime of obtaining property by false pretenses was of statutory origin; it did not exist at common law. (The word 'property' as used in this context means 'title'.) 'Until 1757 the obtaining of property by false pretenses was not generally a crime' (11 Holdsworth, History of English Law, p. 532). It was made a crime in England in 1757 by statute (30 George II, Ch. 24, § 1). New York adopted a similar statute as part of the Revised Laws of 1813 (1 R.L. [Van Ness & Woodworth ed.], § 13, which later became 2 R.S. of N. Y. part IV, ch. I, tit. III, § 53), from which section 1290 of the Penal Law was in part derived, through mesne statutes. It was settled in England soon after the statute was enacted 'that the pretence must relate, not to a future, but to a past or a present, fact' (11 Holdsworth, op. cit., pp. 532-533, citing Young v. The King, 3 T.R., 98, 100). See also Regina v. Dent, [1955] 2 Q.B. 590). It was similarly held in this State that a misrepresentation of the state of one's mind or 'an expression of an intention not meant to be fulfilled' could not serve as the basis for a charge of the statutory crime of obtaining property by false pretenses (People v. Karp, supra, 298 N.Y. at page 216, 81 N.E.2d at page 817; People v. Blanchard, 90 N.Y. 314, 324; see generally 22 Am.Jur., False Pretenses, § 14; but see Model Penal Code, Tentative Draft No. 2, American Law Institute, § 206.2, subsection (2) and comment 7, at pp. 68-69). But this rule applied only to the crime created by the statute. It did not limit the scope of the common-law crime of larceny. If the wrongdoer obtained possession of an article, without obtaining title, by a false representation as to his purpose or intention, this was sufficient at common law as the basis for a charge of larceny by trick and device and it, of course, continued to be sufficient under the statutes (People v....