People v. Kirkup
| Decision Date | 03 April 1958 |
| Docket Number | No. 7258,No. 7256,7256,7258 |
| Citation | 149 N.E.2d 866,4 N.Y.2d 209,173 N.Y.S.2d 574 |
| Parties | , 149 N.E.2d 866 The PEOPLE of the State of New York, Appellant, v. J. Milford KIRKUP, Jr., Respondent, et al., Defendants. (Indictment) The PEOPLE of the State of New York, Appellant, v. J. Milford KIRKUP, Jr., Respondent, et al., Defendants. (Indictment) |
| Court | New York Court of Appeals Court of Appeals |
Edward E. Rigney, Sp. Asst. Atty. Gen. (Edwyn Silberling, New York City, of counsel), for appellant.
Henry Tasker, Reginald C. Smith, Riverhead, and Robert W. Tasker, Greenport, for respondent.
Two indictments were filed against the defendant, Kirkup in the Extraordinary Special and Trial Term of the Supreme Court of Suffolk County. Indictment No. 7256 charges him with having committed the crime of conspiracy contrary to section 580 (subds. 1, 4, 6) of the Penal Law. Indictment No. 7258 charges him with having violated section 1864 of the Penal Law.
The evidence adduced before the Grand Jury would justify a petit jury finding that Albert Freistadt, a pharmacist operating a retail drugstore in Suffolk County, and his successors in interest, had, over a period in excess of four years, ordered drugs from pharmaceutical houses ostensibly for the use of the Suffolk County Home but actually for sale to the public in Freistadt's store; that, as a consequence of that scheme, Freistadt and his successors obtained the drugs at an institutional price which was substantially lower than the price payable by retail druggists; and that, as a favor to Freistadt, his former employer and friend of twenty-five years' standing, defendant Kirkup, Commissioner of Public Welfare of the County of Suffolk, had arranged for Freistadt to use the County Home as a 'front' for Freistadt's purchase of drugs to be sold to the public.
Subdivisions 1, 4, and 6 of section 580 of the Penal Law provide:
'If two or more persons conspire:
'6. To commit any act injurious to the public health, to public morals, * * * or for the perversion or obstruction of justice, or of the due administration of the laws 'Each of them is guilty of a misdemeanor.'
In our judgment, the Grand Jury properly concluded that all the elements of the crime of obtaining property by false pretenses were present and that defendant Kirkup conspired with the retail druggists to commit that crime. A petit jury may rightfully find that the retail druggists by virtue of the aid given them by defendant Kirkup and it is obvious that they needed his aid to succeed in their scheme determined to induce the drug companies to part with possession and title to large quantities of drugs at a price considerably below the market selling price and value to retail druggists, by falsely representing that the drugs were intended for use in the County Home, and that the drug companies acting and relying on those misrepresentations, knowingly false when made, were induced to part with the goods at the prices at which sales were made to public institutions. A person who, with criminal intent, returns less than the correct change on being handed a bill in payment of a purchase is guilty of larceny (see 52 C.J.S. Larceny § 34). Equally guilty of larceny is the person who, with criminal intent and by false representation of fact relied on by the seller, obtains more than that to which he knows he would be entitled as a purchaser in his business as retailer were he to tell the truth. To hold otherwise would be to permit every one purchasing for State, County, city or town to arrange for the purchase, by a retailer, of anything from automobiles to shoe laces at institutional prices and for the public servant or the retailer, or both, to profit thereby.
The Appellate Division held that no larceny had been shown inasmuch as there was no proof that the drug houses were cheated because there was no evidence adduced to demonstrate that the companies lacked knowledge of the operation of the scheme to obtain the institutional discount. Indeed, the Appellate Division went further and held that knowledge of the salesmen of the transfer of the drugs from the institution to the retail druggists was imputable to their companies. We cannot agree.
Freistadt himself thought it necessary to evolve a scheme in order to obtain the discounts, for he testified that cashiers' checks were used so that the drug companies would not know that the drugs were intended for his pharmacy and he saw to it that the drugs were ordered ostensibly for the use of the County Home and were delivered to the County Home. That he succeeded in deceiving the companies seems clear since representatives from the three drug companies with the largest volume of shipments involved testified, in effect, that the companies would not have...
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Plotkin v. Republic-Franklin Ins. Co.
...of Agency § 5.04 ). In such circumstances, an agent's knowledge will not be imputed to the principal (see People v. Kirkup, 4 N.Y.2d 209, 213–214, 173 N.Y.S.2d 574, 149 N.E.2d 866 ). To come within the adverse interest exception, "the agent must have totally abandoned his principal's intere......
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People v. Block & Kleaver, Inc.
...induced thereby to give his property to the defendant (People v. Soto, 76 Misc.2d 491, 352 N.Y.S.2d 144, see, People v. Kirkup, 4 N.Y.2d 209, 173 N.Y.S.2d 574, 149 N.E.2d 866, and People v. Gross, 51 A.D.2d 191, 379 N.Y.S.2d 885 for examples of larceny by false pretenses). The federal mail ......
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People v. Headley
...which the state relied and the defendants obtained property of greater value than their work justified. In People v. Kirkup, 4 N.Y.2d 209, 173 N.Y.S.2d 574, 149 N.E.2d 866 (1958), the defendants falsely represented to drug companies that they were purchasing drugs for use in the County Home......
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People v. Mahan
...false pretenses (see, Penal Law § 155.05[2][a]; People v. Dibble, 135 A.D.2d 1075, 523 N.Y.S.2d 266; see also, People v. Kirkup, 4 N.Y.2d 209, 173 N.Y.S.2d 574, 149 N.E.2d 866). Therefore, the jury should have been instructed with respect to his testimony, first to determine whether he was ......