Appellate Division of the Supreme Court of New York, Second DepartmentJan 17, 1908108 N.Y.S. 610 (N.Y. App. Div. 1908)

January 17, 1908.

Frank Brundage, for the appellants.

Robert H. Elder, Assistant District Attorney [ John F. Clarke, District Attorney, with him on the brief], for the respondent.

This appeal is taken by Miles and Wells from a judgment of the County Court of Kings county convicting them of the crime of conspiracy. Miles and Wells were indicted with McMahon, Scanlon, Wandell and Casey. McMahon and Scanlon were acquitted. Miles, Wells and Wandell were convicted. The jury disagreed as to Casey. The trial lasted 4 weeks. The printed record thereof which, exclusive of many exhibits, is 1,126 pages, bristles with motions, objections and exceptions.

The first question is whether the conspiracy charged was proven and if so, the second question is whether Miles and Wells were proven parties to the conspiracy. The alleged false and fraudulent claims were made for damages to real and personal property caused by the overflow of inadequate public sewers into private premises. The liability of the city therefor was adjudged in Seifert v. City of Brooklyn ( 101 N.Y. 136). In certain quarters of the city at times of excessive rainfalls or of great thaws such damage has been done to property owners and to tenants. The city and its successor has paid out great sums of money in satisfaction. Claims for such damages are presented to the comptroller of the city who has set up a bureau to deal with them. The claims, after their filing with the comptroller or his deputy, were sent to the division of law and adjustment in the comptroller's office whence, after entry therein, they were sent to the said bureau. The head of the bureau assigned each claim to an examiner who investigated and reported to the head for his approval or disapproval. Frequently upon the basis of such action the claims were adjushed and paid without litigation. In many instances, however, claims were tried in the courts. Miles is a lawyer. Casey, Wells and Wandell were engaged about many claims which were presented by Miles as attorney. McMahon was the head of the bureau which I have described, and Scanlon was one of the examiners therein.

I may say at the outset that the nature of the claims afforded opportunity for fraud. The claims were of two classes, for damages to realty and for damages to personality. When the claims were for damages to realty there was an opportunity for examination of the property, but when the claims were for damages to goods, articles of furniture, clothing and the like, then a dishonest claimant ran almost no danger of contradiction and was checked only by the probabilities in view of his circumstances or of his occupation. Such floods naturally destroyed or rendered worthless the articles, and the owner naturally would not keep even those not wholly destroyed as evidence of his loss. There is a further consideration. Almost all of the claimants examined were of humble circumstances, little versed in the procedure of enforcing their claims. Such persons are the more readily induced by intelligent and cunning persons to sign such papers as are put before them without question or scrutiny in reliance upon those to whom they had committed their claims. This should be borne in mind lest such claimants be put in the category of conspirators who turned State's evidence on this trial.

I think that the evidence established the conspiracy. Wells and Wandell were shown to visit persons whose premises were situate in districts which had suffered from these overflows to ascertain that they had suffered some losses thereby and to solicit their claims for losses against the city. Such persons were persuaded to sign blank forms of claims which would subsequently appear as sworn to before Wells or Wandell and filled out with the dates of losses and the items and amounts thereof. Bills of particulars were prepared which were given to the claimants, or at least copies thereof, to present to the examiner from the comptroller's office. Claimant after claimant testified that he (or she) never swore to his claim before either Wells or Wandell; that he had never stated the amounts of his loss at all, or that the amounts inserted in the claim signed in blank were never given by him, or that the losses as specified by him orally had been grossly exaggerated, or that items of loss stated had never been given by him and were wholly false. It must be borne in mind that the claim as presented or particularized did not state a gross sum as, e.g., the recovery asked for in a damage suit, but purported to detail the specific items of loss even down to household articles — clocks, chairs, tables, tools, and the like. The claims were indorsed by Miles as attorney and the bills of particulars were subscribed by him. He was represented by Wandell and Wells as the attorney who would undertake the claim. The agreement generally of 50 per cent on the recovery was made with him. He presented the claims, secured the adjustments from the city, tried the claim if it was litigated, collected the settlement or the judgment and then settled with the claimant. The contention of the People was that after Miles had presented a claim, McMahon, as the head of this bureau, so dealt with it as to send it out of his bureau as recommended for settlement or adjustment after examination, well knowing that it was false or fraudulent or grossly excessive in the amount thereof.

A conspiracy may be proved by what is termed circumstantial evidence, and indeed the very nature of the crime often makes it susceptible of none other. (3 Greenl. Ev. [15th ed] § 93 et seq.; Kelley v. People, 55 N.Y. 576; People v. McKane, 143 id. 455; People v. Peckens, 153 id. 576.)

I think also that the evidence is conclusive that Wells and Miles, the only parties directly concerned in this appeal, were co-conspirators. It was not necessary to show that either Wells or Miles took part in every act or was actually cognizant of every act which was in furtherance of the conspiracy. Conspiracy implies concert of design, not participation in every detail of execution. Indeed the fact of conspiracy may exist because one alone could not compass the purpose. ALLEN, J., in Kelley v. People, ( 55 N.Y. 576) says for the court: "A conspiracy may be proved, as other facts are proved, by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result and the consummation of the same offense, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offense. One party may allure the victim into the den, leaving it to others to effect the robbery, and all will be held equally guilty as confederates." Wells took part in the work of preparing claims, as I have detailed it, which were given to Miles as attorney. Wells had an office either in Miles' office or at least adjacent to it, and acted in conjunction with Miles. It is testified to repeatedly that his jurats to claims full of fraudulent or excessive items were false, that the claimants had never taken oath to them and had never authorized him or any one to make them up in the dates, amounts or items as presented, but on the contrary had stated losses which were trifling compared to the amounts inserted, and in two or three instances that the claims themselves were entirely false. It is impossible in the compass of this judgment to detail the evidence, but I specify as instances the claims of Monett, Irlanda, Rueger, Dessner, Wasserwash, Bell, Bruno, Berliner, McGauley and Cora Jones.

Miles was the attorney for a multitude of claimants and among them for the 60 or more called as witnesses in this case.

It may be conceded that Miles as an attorney for a claimant could have been imposed upon by a lying client or by the artifices of those who interviewed his clients and reported the claim and made up the particulars thereof. An innocent attorney may have a false client, a false clerk, a false examiner, and thus have foisted on him a fraud which he may honestly present. I go further to say that an attorney engaged in such a mass of litigation might have been the more readily hoodwinked and deceived in many instances. But the connection of Miles does not depend upon mere inferences alone, but also upon evidence which points unerringly to knowing participation. While the runner's work was not as a rule done by Miles, there are instances of his personal contact with claimants which are irreconcilable with any conclusion save that he knew that the claims were false, fraudulent and padded as presented and as pushed by him. These instances scout the suggestion that he was hoodwinked or deceived by Wells, Wandell or any other person. I specify his connection with the claimants Romeo, McGauley, Caveleiro, Rueger, White, Schwartz, Lowenhaupt, Pinto and Wegner, not to be understood as confining the evidence to these cases.

It is insisted that the indictment was bad in that it charged no crime. The indictment is under section 168 of the Penal Code, and more particularly upon subdivision 4 thereof which provides: "If two or more persons conspire either * * * 4. To cheat and defraud another out of property, by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property by false pretenses * * * each of them is guilty of a misdemeanor." The form of the indictment is in accord with that prescribed by section 276 of the Code of Criminal Procedure, and the terms thereof comply with the requirements of section 275 thereof in that they show the title of the action, the name of the court, the names of the parties and a plain and concise statement of the act constituting the crime. If I understand the argument of the learned counsel for the appellants, it rests upon the proposition that the allegation is that defendants conspired to cheat and to defraud the city of New York by procuring certain and divers false and fraudulent claims against said city and bills and claims containing false and fraudulent claims for damages pretended to be sustained. This proposition mistakes the charge. As formulated it is that the defendants "devising and intending to cheat and defraud the City of New York out of its money and property" conspired "by procuring certain and divers false and fraudulent bills and claims against said City, and certain and divers bills and claims against said City containing false and fraudulent charges" to be audited, allowed and paid by the comptroller of the said city, unlawfully to cheat and defraud the city of New York out of its money and property and to obtain the money and property of the city of New York. A person who, knowingly, with intent to defraud, presents, for audit, allowance or payment, to any officer of any city authorized to audit, allow or to pay bills, claims or charges, any fraudulent claim, bill or account, or any bill, etc., containing false or fraudulent charges, items or claims, is guilty of a felony. (Penal Code, § 672.) The comptroller of the city of New York was such an officer. (Greater N.Y. Charter [Laws of 1901, chap. 466], § 149, as amd. by Laws of 1904, chap. 247.) As the means there alleged were of felonious character they were criminal within the purview of section 168 of the Penal Code. Moreover, I think that the means as set forth are such as "if executed would amount to a cheat" within the purview of section 168 of the Penal Code. The word "cheat" is thus used in its common-law significance. ( People v. Olson, 15 N.Y. Supp. 778-780.) Cheat at common law is such a "fraud as would affect the public; such a deception that common prudence and care were not sufficient to guard against it, as the using of false weights and measures, or false tokens, or where there was a conspiracy to cheat." ( People v. Babcock, 7 Johns. 201.) As to the character of the pretense, see People ex rel. Phelps v. Oyer Terminer ( 83 N.Y. 449). Conspiracies to cheat a state or county or a city are held indictable as a combination to injure the public. (8 Cyc. 633, citing State v. Cardoza, 11 S.C. 195; State v. Young, 37 N.J.L. 184; McDonald v. People, 126 Ill. 150. See, too, People v. Olson, supra, 778, and authorities cited.) And I think that the means are sufficiently set forth. ( State v. Young, supra; Madden v. State, 57 N.J.L. 325; State v. Cardoza, supra.) It was not essential that all of the particular acts and steps in the procurement of the false claims or in the insertion of false items in claims, or towards the procurement of the audit, allowance and payment thereof by the comptroller, should be spread out in the indictment. As was tersely said by WILLARD BARTLETT, J., in People v. Willis ( 34 App. Div. 206): "In the nature of things the charge cannot be made any more definite than was the actual agreement of the conspirators. If the conspiracy was indefinite, the pleader cannot be called upon to state a definite conspiracy in order to make the indictment good. Particulars cannot be pleaded which did not enter into the agreement. The real question is whether such agreement, as is stated in the indictment, no matter how indefinite it was, and no matter how general in its terms, constitutes a criminal conspiracy under the statute." So far as the steps to be taken in the procurement of audit, allowance and payment are concerned, it was not necessary to state them, as the procedure was "prescribed by the charter of the city, which is a public statute, of which the court must take judicial notice," to quote the language of O'BRIEN, J., writing for the court in People v. Willis ( 158 N.Y. 397). It suffices that "the nature and purpose of the conspiracy is stated in terms sufficiently clear and specific to enable the defendants to prepare for trial, and the judgment rendered upon it would be a bar to another trial upon the same charge." ( People v. Willis, supra, 397.) In People v. Everest (20 N.Y. St. Repr. 461), BARKER, P.J., for the court, says: "As the agreement is the gist of the offense, there cannot be but one trial and conviction where there is but one agreement, although the conspirators may have agreed upon a variety of means by which to accomplish their purpose."


The learned counsel for the appellants insists that the overt act alleged is not sufficient. Referring to the claimant named therein, he asks with reference to his claim, Did he ever see it, did he ever sign it, did he ever swear to it, did he ever know anything about it, was anything ever done with it? His questions may be answered, as he would have them answered, without avail to him. Section 171 of the Penal Code provides: "No agreement except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act beside such agreement be done to effect the object thereof by one or more of the parties to such agreement." It is to be noted that the act to be done is one to effect the object thereof by one or more of the parties. (See, too, Whart. Crim. Law [10th ed.], § 1384; 4 Elliott Ev. § 2984; Adams v. People, 9 Hun, 89; People v. Chase, 16 Barb. 495.) With reference to the overt act alleged, Boricka testified that he never signed his name to the claim; that he never swore to the claim. The jurat was that of Wandell, who has been convicted in this case, and does not appeal. He testifies that he once lost by the floods; that the damage was to carpets and his heater; and he lost some preserves, peaches and pears, all kinds of preserves. The daughter of Boricka testifies that she was presented with certain slips; that she told of some of the losses in the house, to wit, two carpets, a new heater, a back stoop and some preserves; that she did not tell what the value of the things was; that she signed the name of her father, Martin Boricka; that she asked the examiner to withdraw the case; that she was afterwards scolded by Wandell for withdrawing the case; that she then told Wandell of the damage they had had, some carpets, preserves in the cellar and the heater, and that she thought that was all she told him except about the stoop; that she did not swear to the papers at all; that as matter of fact what was lost was two carpets of Brussels and a lot of preserves, and there was damage done to the back stoop where the wood was rotted, about two or three steps; that she did not tell the defendants that she had lost or her father had lost $2,187 in damaged property; that she did not lose any potatoes, nor tea of the value of $20, nor a glass closet worth $35, nor a center table, nor a trunk of clothes worth a hundred dollars, nor clothing $45, nor that it cost them $20 to pump out the water, nor $60 for the carpets, nor linoleum, 40 yards, nor the two sideboards worth $50, nor a lounge, nor a desk, nor a rug, nor groceries to the amount of $50. The evidence shows that this claim was solicited by Wandell, who annexed a false jurat; that it was fraudulently and outrageously increased by false items and that it was filed by Miles as attorney. There is not the slightest doubt of Wandell's part in the conspiracy; it is established by overwhelming evidence and he takes no appeal. In State v. Young ( supra) the court, per BEASLEY, Ch. J., says: "But this is not an admissible conclusion, for all the pleader, by force of the crimes act, is required to do, is to set forth `some act' done to effect the object of such conspiracy. Such overt act may or may not be in itself criminal. The conspiracy is the crime, and the overt act bringing it within the requirement of the statute may be a very insignificant affair. A completed crime is shown on the record before us by the averment of a criminal conspiracy, and the averment of the doing of any thing, no matter what, in furtherance of it, yielding therefore the premises claimed, the crime in this case is well charged."

The further point is made as to the overt act that, inasmuch as the proof showed that the claimant did sustain material damage by reason of the overflow, therefore, the overt act charged in the indictment was not proven as laid. We are cited to People v. King ( 19 Misc. Rep. 98), which was cited by this court in Bank of Staten Island v. City of New York ( 68 App. Div. 238). That case is not at all in point. It only goes to the extent of holding that a mere excessive charge cannot be the basis of fraud; and as cited by us supra, it was simply on the point that mere error of judgment of a board of audit, upon the facts, as to an amount, so long as it keeps within its jurisdiction and acts in good faith, cannot be the subject of an overhauling. It seems to me absurd to say that because a part of this claim may have been well founded, therefore, no fraud can be alleged, although other parts of it are plainly the result of fraudulent wrongdoing. (See People v. Tweed, 5 Hun, 360.)

It is contended that the court erred in admitting evidence as to the falsity or fraud of claims of over sixty persons not mentioned in the indictment. It is argued that section 275 of the Code of Criminal Procedure provides that the indictment shall contain a concise and plain statement of the facts or acts constituting the crime, and that if the indictment does not specify the acts (meaning thereby, I take it, all of the acts to be put in evidence) it becomes a pitfall. The answer to this is that the crime charged is a conspiracy, not the presentation of the false claim of Boricka; that the pleading is not required to state the evidence ( People v. Willis, 158 N.Y. 399), and that the Code of Criminal Procedure expressly provides (§ 398): "Upon a trial for a conspiracy, in a case where an overt act is necessary to constitute the crime, the defendant cannot be convicted, unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment, may be given in evidence." It is insisted that the court erred in receiving the testimony of these claimants; that the defendants Wells, Wandell and Casey procured them to make the false or fraudulent claims for the reason that there was no proof of an unlawful combination or conspiracy between Miles, Wells, Wandell, Casey, McMahon or Scanlon. Russell on Crimes (Vol. 1 [6th ed.], p. 533) says: "It is a mistake to say that a conspiracy must be proved before the acts of the alleged conspirators can be given in evidence. It is competent to prove insulated acts as steps by which the conspiracy itself may be established." (See, too, 2 Bishop New Crim. Proc. § 227, subd. 2.) Russell ( supra at p. 535) lays down the rule that "the prosecutor may either prove the conspiracy, which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy." "The actual fact of conspiring may be inferred, as has been said, from circumstances, and the concurring conduct of the defendants need not be directly proved. Any joint action on a material point, or collocation of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the co-operation of any individual conspirator." (Whart. Crim. Law [10th ed.] § 1398.) Archbold's Criminal Practice and Pleadings (Waterman's Notes [6th ed.], vol. 3, *621, 622) states: "Wherever the writings or words of any of the parties charged with or implicated in a conspiracy can be considered in the nature of an act done in furtherance of the common design, they are admissible in evidence, not only as against the party himself, but as proof of an act from which inter alia the jury may infer the conspiracy itself; wherever the writings or words of such a party amount to an admission merely of his own guilt, and cannot be deemed an act done in furtherance of the common design, in that case they can be received in evidence merely as against the party, and not as evidence of the conspiracy, and in strictness ought not to be offered in evidence until after the conspiracy had been proved aliunde." It cannot be gainsaid that when the question is whether there was a conspiracy to defraud by presenting a false or fraudulent claim, that proof that some one or more of the defendants procured a claimant to make a false claim, that such act is in furtherance of such conspiracy, and hence of probative force towards the establishment of it. "If an act or declaration is of such a character as to tend to establish the existence of the conspiracy, then it should not be excluded merely because it is also of such a character as to bind all the conspirators by its consequences in the event of the establishment of the conspiracy." ( Farley v. Peebles, 50 Neb. 723; cited 8 Cyc. 684.) In any event the order of proof was within the sound discretion of the court, and it is an approved practice that the court may admit the acts or declarations of the alleged conspirators before proof of the conspiracy. (Carson's Wright Crim. Consp. Agreem. 215, citing authorities; 8 Cyc. 682, and authorities cited; Whart. Crim. Law [10th ed.], § 1401, notes; Abb. Tr. Brief, Crim. Causes, p. 318.) The learned trial court was careful to safeguard its rulings with the constant declaration that this evidence and like evidence was relevant upon the conspiracy provided the conspiracy was established, and against those of the defendants who were conspirators. There is no force in the point that the procurement of a false or fraudulent claim by Wells, Wandell or Casey was an isolated act. The question is whether the act was in furtherance of the common combination. ( Kelley v. People, supra; Commonwealth v. McClean, 2 Pars. [Penn.] 368; Whart. Crim. Law [10th ed.], § 1398.) Consequently it was not error to admit the evidence of claimants that they never swore to the claims before Wandell or Wells, whose names nevertheless appeared on jurats affixed to their claims.

Sic; "isolated" evidently intended.

Error is assigned in the ruling of the court on page 670, volume 2, in that the court admitted against the appellants certain books and entries. This was the Black Book (See page 669, Idem). The book was kept by the defendant McMahon as a history of the sewer claims. The book was offered in evidence at page 676 at the suggestion and on the consent of McMahon's counsel. But the counsel for the appellants objected on the ground that there was no foundation laid for it either under the indictment or in the proof. The court ruled: "The book is received in evidence, but only such parts as relate to the matters here in issue or which have been testified to here. It must not be received as to any time prior to the Statute of Limitations." The counsel for McMahon then said he would reserve his objection if there was a limit. "It would be valuable for me to have it in." The Court: "When either side objects I must guard my ruling so as not to make it improper under that objection; therefore I take it that the book is in evidence regarding claims simply which have been presented here. Put it in within the time covered by the indictment." The District Attorney: "Then I offer from page 4, beginning April 14th, 1904, and all other entries in the book that do not antedate that date. The indictment was filed February 6th, 1906." Counsel for the appellants: "We do not raise any objection on the ground of the Statute of Limitations. My position is, I simply regard the entries of these people in another office as absolutely incompetent as against my clients." The Court: "So far as these entries show anything that has been done in the past as relating to a past transaction, it is limited to that and to that alone of the person who makes the entry or statement and so I have ruled regarding the reports. Of course it may be, if the report is made in the line of duty, the entries made in the line of duty, although it does not contain something, some one has said or done and it may be a present act or statement which could be admissible as against others conspiring, but to be perfectly safe so I have before stated when a report or book contains any statement of a past deed or a past statement or transaction on behalf of any claim, we will take it as against the person making the statement or claim, I have made that statement before and I want to have it plain." Turning back to the ruling now objected to, I find that the ruling was made as to an inquiry relative to certain claims presented by the defendant Miles, filed in the department. I think that the admission of these entries should be sustained on the authority of Queen v. Blake (6 Q.B. [Ad. El.] 126), a leading case cited both in Russell on Crimes (Vol. 1 [6th ed.], p. 532), and also in Phillips on Evidence (Cowan, Hill Edwards' Notes, vol. 1, *210). I find further that on page 1070, volume 2, the learned counsel for these appellants said: "I want that book all in evidence." The District Attorney: "It is all in them." The Court: "Both counsel request that the black book go in as from the beginning of these entries." The Court: "No objection, the book referred to as the black book throughout the case is in." Counsel for appellants: "I understand the others, these dates begin at a later date." The point is raised that the learned court erred in admitting the books containing a record of these claims. The purpose of the evidence was stated by the learned district attorney as follows: "I want to show that there was a policy adopted under McMahon whereby every other lawyer was not to get the same equal rights, the same equal examination, the same degree of fairness, that Miles was. I want to show that these men were instructed in going out that Towns McCrossin and other lawyers' cases what they should do with these and what they should do with Miles' cases, and I cannot show that unless I can show what McMahon told these various examiners." After a long colloquy the court ruled as follows: " I will allow this simply as against McMahon, not for the purpose of showing that the claims were fraudulent or fake or that Miles' claims were good or fake, but as showing his attitude towards the Miles' claim as compared with others. That is what I will allow it for without indicating in any way that it does show that, but simply upon that proposition and admitted simply against McMahon." I think that the ruling was right. To sustain this contention of favoritism the prosecution offered evidence that an examiner of a Miles claim who reported against an allowance was directed by McMahon to rewrite his report for an allowance, or if he reported for some allowance he was often told to increase the allowance, or that queries of the examiner as to the validity of the claim were suppressed, or if he reported that the claim was fraudulent he was still directed to make an allowance, or his report for some allowance was increased; that claims were taken from an examiner who reported adversely and given to another examiner; that reports of fraudulent claims with a withdrawal thereof were destroyed and another examiner sent out, who reported for an allowance; that McMahon granted subpœnas for examination in all cases save Miles, which he refused; that in a given instance of two fraudulent claims, one of them, Miles, was allowed, while that of another attorney was marked fake; that McMahon sent other claims for investigation by the district attorney, he refused to send Miles', although requested by an examiner; that every time McMahon received a withdrawal from a claimant represented by Miles, he notified Miles, and that all of this course was pursued towards Miles alone, and not to other attorneys, and that, on the contrary, McMahon reduced their allowances far below the average of reduction in Miles' cases, or refused them entirely. Many of these acts, if peculiar to the claimants represented by Miles, naturally tended to show a studied system of favoritism to Miles on the part of that official in the comptroller's office, whose word went furthest in the first instance as to the justness of the claim. Of course it might be said that the mere proof that a public officer approved or allowed a claim presented by one attorney and rejected that of another attorney did not show fraud or even favoritism. I go still further and say that even though such two claims arose out of the same casualty, still the one might be proper and the other wrong, or the official might honestly mistake, even to the extent of approving the false claim and disapproving the valid claim. But where the course, as in this case, was uniform as to scores and scores of claims represented by Miles and exclusive of other claims not represented by him arising from the same casualty, it is almost beyond the limits of credulity that the official honestly believed that every claim represented by Miles should receive favorable treatment as against claims for like casualties from like cause not put into Miles' hands, especially when the determination of McMahon was almost invariably based upon examinations by others and their reports, without any personal knowledge whatever on his part. It appeared from analysis of Miles' claims, compared with those of some other attorneys, that Miles received nearly 28 per cent of an allowance, while none of the others received more than 6 per cent and several less than 3 per cent. It was not error in the court to receive the tabulation by an expert of these books. The learned court said: "These books 1, 2 and the black book have been examined by the jury, page by page, and time taken in the examination of these books without objection, page by page and claim by claim, nearly a full day, now I can see no objection of having a statement made as to what the number of these claims are of the respective lawyers they saw in the books and the various amounts on the books on their tabulated statement of items. If it be confined to the books looked at to be admitted of course as against McMahon on the request of the District Attorney." The court said again: "I will instruct the jury, if it ever comes as a question for the jury, that it is not a question of the number of amounts or number of claims, but it is a question of their known falsity; that is one of the chief elements in this case. If you think this will influence the jury at all, I will state that they must not consider this as bearing against Miles, but that it is offered as bearing on the attitude of McMahon towards the various claimants. It is a summary of the books which they have examined and I will allow it for that purpose only, and I will instruct the jury so at this point."

This mere admission of a tabulation is well sanctioned by the practice. (Whart. Crim. Ev. [8th ed.] § 166; 2 Wigmore Ev. § 1230; State v. Findley, 101 Mo. 217, 223, and authorities cited; State of Iowa v. Brady, 100 Iowa 191, 198, and authorities cited.) The court did not err in its ruling upon the reports of the examiners, for repeatedly it limited their admission and finally changed the charge: "Again at this point let me state that certain reports were put in evidence, brought out by one of the attorneys for the defendants, Mr. Stapleton, I think, and these were reports other than those made by Mr. Scanlon, one of the defendants and one of the alleged conspirators. These were reports made on other cases of Mr. Miles, and in them some remarks were made as to the opinion of the examiners, but such evidence could and must not be received by you against Miles and the other three as bearing on the falsity or the known falsity of the Miles claims. It is no evidence against him and his associates. There are some reports of Scanlon's which would be competent evidence to consider, provided you find there was a conspiracy and Scanlon one of the conspirators, and it is proved by other evidence than these reports and the report was made in furtherance of the conspiracy." And when exception was taken the court further instructed the jury: "What I mean to charge is if the jury first find from the evidence, excluding such reports, that there was a conspiracy and that Scanlon was one of the conspirators, that in that case so much of his report as is a furtherance of the conspiracy and the purpose of it, and is not a statement of anything said by some one else, or a statement of something done by somebody else, may be received as evidence against all the conspirators. I think that is the law." Counsel: "Does your Honor mean to charge if the report contained statements of what he learned or found out that had occurred prior to that time, that that would be any evidence against any of them?" The Court: "No. That has been my ruling throughout the case. I adhere to the same ruling." Counsel: "Very well, that is all."

The further point is made that the verdict should not stand for the reason that some of the conspirators were acquitted. The crime charged is that of a conspiracy or combination, and in such a case if there be two indicted, while one cannot be convicted and the other acquitted, nevertheless the rule is clear that it is not essential that more than two should be convicted; because, as I have said before, a conspiracy is not a case where all must do every act in concert, and, therefore, the jury may determine that the evidence is sufficient to show some of the alleged conspirators guilty of some acts in furtherance of the criminal combination, and yet insufficient to show others guilty of other acts in furtherance of the combination. Nor is this verdict illogical beyond the mere legal aspect of it. The conspiracy required the preparation of the claim as part of the audit, allowance and payment. The jury may have been well convinced that the defendants whom they convicted were guilty of some of the acts in the preparation of the claims, and yet that the individuals whom they acquitted were not shown to be guilty beyond a reasonable doubt of the acts which they as officials were required to do towards the success of the conspiracy. The guilt of Miles and Wells could be established without the guilt of McMahon and Scanlon. Miles and Wells could have been convicted upon the testimony of witnesses who had never heard of McMahon or Scanlon, or that there were any persons charged with the duties which were cast upon them. Miles and Wells could have been convicted by proof of acts with which McMahon and Scanlon took no part, for their action began after the presentation of these claims to the comptroller.

The other exceptions have been considered, although only the main ones have been discussed. It is unprofitable, if not impossible, to review every exception to rulings upon evidence in these 1,200 pages, which represent a legal battle hotly contested at every point. Suffice it to say that we cannot see that the defendants have been prejudiced. It appears to me that the court held the balance true and presided with marked fairness and ability.

The judgment and order must be affirmed.

HOOKER, GAYNOR and MILLER, JJ., concurred; RICH, J., read for reversal.

I dissent upon the ground that the books from the comptroller's office, admitted for the purpose of making a comparison between the sums allowed upon claims presented by Miles with those presented by other lawyers, were improperly received, and that it was error to admit the evidence of the expert upon this subject. It cannot be said that the jury was not prejudiced by this evidence, and I must vote for a reversal of the judgment upon these grounds.

Judgment and order of the County Court of Kings county affirmed.