Soltau v. Gerdau
New York Supreme Court
Appeal from special term, Yew York county. The plaintiff, for some time previous to the transaction which eventuated in this action, had employed one Henry A. Smith, a broker in rubber, to sell that article. The plaintiff conducted this business through Smith “mysteriously,” as he described it, by which he meant that his name was not to be divulged, to avoid competition; but Smith was nevertheless to act for his principal, though undisclosed.
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Appeal from special term, Yew York county. The plaintiff, for some time previous to the transaction which eventuated in this action, had employed one Henry A. Smith, a broker in rubber, to sell that article. The plaintiff conducted this business through Smith “mysteriously,” as he described it, by which he meant that his name was not to be divulged, to avoid competition; but Smith was nevertheless to act for his principal, though undisclosed. It was not, therefore, the understanding between them that Smith was to act in his own name only. He was, on the contrary, employed only as a broker,…
1Opinion of the CourtBrady, J.
These facts lead but to one conclusion, assuming them to be true; and that is that Smith committed a theft of the rubber, and was guilty of larceny. Prior to the Penal Code, a distinction existed between larceny, eo nomine, and the crime of obtaining property by false pretense, which protected the purchaser, inasmuch as the latter offense then involved, not only the transfer of possession, but the right of property also, as the result of the fraud successfully practiced. These distinctions were admirably and fully stated by Justice Pratt in Collins v. Ralli, 20 Hun, 246, and adopted by the…
Also in this document: Concurrence.
2Cases cited5 opinions
- People v. . DumarNew York Court of Appeals · 1887
- Bassett v. . SpoffordNew York Court of Appeals · 1871
- Zink v. . the PeopleNew York Court of Appeals · 1879
- Thorne v. . TurckNew York Court of Appeals · 1883
- Hentz v. . MillerNew York Court of Appeals · 1883
3Cited by2 opinions
- Schmidt v. SimpsonAppellate Division of the Supreme Court of the State of New York · 1910
- In re Grade Crossing CommissionersNew York Supreme Court · 1900