Opinion
March 3, 1943.
Appeal from Ulster County.
These actions are to recover automobiles originally sold by Barcia and Mosca to one Byron who induced the sale by false statements as to his identity and worth and by giving forged checks. The cars then were sold by Byron to "The Broadway Motor Mart" of Kingston and passed thence to the plaintiffs. The true owners of the cars and the defendant Phinney, who is the Chief of Police at Kingston, thereafter seized them and these actions are for their recovery. The question involved in each action was the same, namely, whether the title of the cars passed from the true owners to Byron. The Special Term held that the cars were obtained by trickery and fraud which constituted common-law larceny, that there was no sale to Byron and that he never acquired title. With this holding we are in accord. In each action the order is affirmed, with costs. Crapser, Bliss, Heffernan and Schenck, JJ., concur; Hill, P.J., dissents, upon the authority of Phelps v. McQuade ( 220 N.Y. 232, 235). The plaintiffs were deceived as to the identity of the person with whom they dealt and to whom title to the automobiles passed. No checks were given as the documents were each postdated. ( Lesser v. People, 73 N.Y. 78, 80.)