(161 Ν.Ε.) ally suffered to remain standing upon the crossing. The judgment should be affirmed. CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, and KELLOGG, JJ., concur. O'BRIEN, J., not sitting. Judgment affirmed. (248 Ν. Υ. 159) sidered on appeal in determining sufficiency of evidence to sustain conviction simply because nature of it appeared in printed record. 7. Corporations 534-In larceny prosecution, evidence held insufficient to show that defendant corporation's officers or manager. authorized resale of complainant's 'coat bought from defendant, or that resale of purchased coats was established practice in defendant's establishment (Penal Law, § 1290). In prosecution of corporation for larceny under Penal Law (Consol. Laws, c. 40), § 1290, evidence held insufficient to show that defendant's officers or manager had authorized resale PEOPLE v. CANADIAN FUR TRAPPERS' of complainant's coat bought from defendant, CORPORATION. Court of Appeals of New York. May 1, 1928. 1. Corporations 529-Corporation may be guilty of crime of larceny (Penal Law, §§ 1290, 1932; General Construction Law, § 37). Under Penal Law (Consol. Laws, c. 40), §§ 1290 and 1932, and General Construction Law (Consol. Laws, c. 22), § 37, corporation may be convicted of crime of larceny. 2. Corporations 526-Corporation may be liable criminally for agents' acts In doing things prohibited by statute. Corporation may be liable criminally for acts of its agents in doing things prohibited by statute. 3. Corporations529-To be guilty of larceny, corporation must intend to steal, to misappropriate, to apply property of another to corporation's use (Penal Law, § 1290). In order for a corporation to be guilty of larceny, under Penal Law (Consol. Laws, c. 40), § 1200, there must be intent to steal, to misappropriate, to apply property of another to use of corporation. 4. Corporations 529-Intent of corporation to commit larceny must be intent of corporation, not merely that of agent (Penal Law, § 1290). Intent of corporation to steal, to misappropriate, and to apply property of another to use of corporation so as to be guilty of larceny, under Penal Law (Consol. Laws, c. 40), § 1290, must be intent of corporation, and not merely that of agent. 5. Corporations 529-Corporation was liable in prosecution for larceny only for acts authorized through action of officers or done with officers' acquiescence (Penal Law, § 1290). Corporation was liable in prosecution for larceny under Penal Law (Consol. Laws, c. 40), § 1290, only for acts which it authorized through action of its officers, or which were done with acquiescence of its officers. 6. Criminal law 1134(2) -Evidence erroneously stricken could not be considered on appeal in determining sufficiency of evidence to sustain conviction. Evidence erroneously stricken out as evidence in larceny prosecution could not be con and that, if complainant's coat was resold, resale of purchased coats was continuous and established practice in defendant's establishment. 8. Corporations534-In larceny prosecution, question whether title to coat alleged to have been resold by defendant had passed to buyer held for jury (Personal Property Law, § 100). In prosecution of corporation for larceny by reselling coats already sold, but kept by defendant until paid for, in view of Personal Property Law (Consol. Laws, c. 41), § 100, question whether title to coat alleged to have been resold had ever passed to buyer held for jury. Appeal from Supreme Court, Appellate Division, Fourth Department. The Canadian Fur Trappers' Corporation was convicted of the crime of grand larceny in the second degree, and from a judgment of the Appellate Division (222 App. Div. 791, 226 N. Y. S. 876), affirming the judgment of conviction entered on a verdict of a jury, defendant appeals. Reversed. Abraham J. Halprin, of New York City, Frank H. Hiscock, of Syracuse, and I. Maurice Wormser, of New York City, for appel lant. Guy B. Moore, Dist. Atty., of Buffalo (William L. Marcy, Jr., of Buffalo, of counsel), for the People. CRANE, J. The defendant, a corporation, has been found guilty of grand larceny, second degree, and fined $5,000. The argument presented here is that a corporation cannot commit the crime of larceny, as it is impossible for a corporation as such to have intent to steal or misappropriate property. [1] We think this question has been fairly well settled to the contrary. Penal Law (Consol. Laws, c. 40), §§ 1290 and 1932; General Construction Law (Consol. Laws, c. 22), §37; People v. Hudson Valley Const. Co., 217 N. Y. 172, 111 N. E. 472; People v. Rochester Ry. & Light Co., 195 N. Y. 102, 88 Ν. E. 22, 21 L. R. A. (N. S.) 998, 133 Am. St. Rep. 770, 16 Ann. Cas. 837; People v. Dun bar Contracting Co., 165 App. Div. 59, 151 N. Y. S. 164; Id., 215 N. Y. 416, 109 N. E. 554; U. S. v. Union Supply Co., 215 U. S. 50, 30 S. Ct. 15, 54 L. Ed. 87; U. S. v. MacAndrews & Forbes Co. (C. C.) 149 F. 823, 835; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 Ν. Ε. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280; State v. Rowland Lumber Co., 153 N. C. 610, 69 S. E. 58; State v. Passaic County Agr. Soc., 54 N. J. Law, 260, 23 A. 680; State v. Baltimore & O. R. Co., 15 W. Va. 362, 388, 36 Am. Rep. 803. See the authorities reviewed in 2 British Ruling Cases, p. 238, note. There are some cases to the contrary. Androscoggin Water Power Co. v. Bethel Steam Mill Co., 64 Me. 441; Commonwealth v. Illinois Cent. R. Co., 152 Ky. 320, 153 S. W. 459, 45 L. R. A. (N. S.) 344, Ann. Cas. 1915B, 617; State v. Truax (May, 1924) 130 Wash. 69, 226 P. 259. [2] It has long been the law that a corporation may be liable criminally for the acts of its agents in doing things prohibited by statute. New York Cent. & H. R. R. Co. v. U. S., 212 U. S. 481, 29 S. Ct. 304, 53 L. Ed. 613. The railroad company in that case was charged with rebating in violation of an act of Congress, and the court said: "We see no valid objection in law, and every reason in public policy, why the corporation which profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has intrusted authority to act in the subject-matter of making and fixing rates of transportation, and whose knowledge and purposes may well be attributed to the corporation for which the agents act. While the law should have regard to the rights of all, and to those of corporations no less than to those of individuals, it cannot shut its eyes to the fact that the great majority of business transactions in modern times are conducted through these bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at." This is the law for corporations whose servants violate positive prohibitions or commands of statutes regarding corporate acts. Such offenses do not necessarily embody the element of intent to commit a crime. The corporation would be guilty of the violation in many instances, irrespective of intent or knowledge. Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 P. 924, 105 Am. St. Rep. 74. [3, 4] When it comes, however, to such crimes as larceny, there enters as a neces sary element the intent accompanying the act. There must be the intent to steal, to misappropriate, to apply the property of another to the use of the corporation to constitute the crime. The mere knowledge and intent of the agent of the servant to steal would not be sufficient in and of itself to make the corporation guilty. While a corporation may be guilty of larceny, may be guilty of the intent to steal, the evidence must go further than in the cases involving solely the violation of prohibitive statutes. The intent must be the intent of the corporation, and not merely that of the agent. How this intent may be proved or in what cases it becomes evident depends entirely upon the circumstances of each case. Probably no general rule applicable to all situations could be stated. It has been said that the same evidence which in a civil case would be sufficient to prove a specific or malicious intention upon the part of a corporation defendant would be sufficient to show a like intention upon the part of a corporation charged criminally with the doing of an act prohibited by law (U. S. v. John Kelso Co. [D. C.] 86 F. 304), and Judge Hough in U. S. v. New York Herald Co. (C. C.) 159 F. 296, said: "To fasten this species of knowledge upon a corporation requires no other or different kind of legal inference than has long been used to justify punitive damages in cases of tort against an incorporated defendant." See, also, People v. Star Co., 135 App. Div. 517, 120 N. Y. S. 498, where the malicious intent of the agents in writing a libel was attributable to the corporation. See, also, Grant Bros. Const. Co. v. United States, 13 Ariz. 388, 114 P. 955, and State v. Salisbury Ice & Fuel Co., 166 N. C. 366, 81 S. E. 737, 52 L. R. A. (N. S.) 216, Ann. Cas. 1916C, 456, involving false pretenses. Also Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. S.) 1015, where the intent of the officers became the intent of (161 Ν.Ε.) "The proof permitted the jury to find that the wrongful acts attributed to the employees and agents of the defendant were performed in its service so methodically and continuously as to indicate the sanction of the corporation. The court properly charged that the corporation could act only through its officers and agents, and was amenable to the law for the acts of its officers and those of its employees of which it had knowledge." And in State v. Baltimore & O. R. Co., supra, it was stated: "It is but a reasonable inference that acts which are habitually done by the authorized agents of a corporation are done with their approval; and this is indeed almost the only manner in which the approval by the corporation of the acts of its agents can ever be proven. The tacit appropriation by a corporation of the benefits of the acts of its agents, repeatedly occurring, is full and satisfactory proof of the assent of the corporation to the doing of such acts." There may be cases where the single act of an officer will constitute larceny by a corporation, but we are not dealing with such a case here, and, as I have stated, it would probably be unwise to attempt to place limits upon corporate criminal liability. The rule is, however, that the acts must be corporate acts authorized by it. As before stated, this may be proved in many different ways. In this case, the able assistant district at torney, Mr. Marcy, recognized the rule, and attempted to bring his evidence within it. He sought to prove that one of the officers of the corporation had given instructions to do the acts constituting larceny, and he also sought to prove that there had been such a long-continued user of felonious practices as to prove knowledge or intent upon the part of the corporation. In his attempt to substantiate these elements of the crime, he was largely frustrated by the rulings of the trial judge. At this point it may be well to state the facts in order to elucidate our meaning. The defendant was a domestic corporation, known as Canadian Fur Trappers' Corporation, carrying on the business of selling fur coats on the installment plan in Buffalo, N. Y., under the name of "Fields." Four brothers, named Dornfeldt, constituted the corporation, and were its only officers. It advertised attractive sales during the summer of 1926. The prosecuting witness, Mrs. Ella Stanley, bought a coat at one of these sales for $295, paying a deposit of $25, the coat to be delivered to her upon payment of the balance. There was no time fixed in which the balance was to be paid. The evidence fairly shows that the defendant agreed to keep the coat in storage or on deposit for Mrs. Stanley until the balance was paid. Later in the fall, when she paid the balance, the coat was gone. It had been disposed of, and there was evidence which would justify the jury in believing that some one in the defendant's employ had resold the coat. The defendant's employees and officers attempted to deliver to Mrs. Stanley another coat which they said was the one she had selected. In this they were evidently mistaken, if not willfully falsifying, as the coat was of a different size and make. The evidence is quite conclusive upon this point. There is also evidence to show that the coat which this defendant through its employees attempted to deliver to Mrs. Stanley as the one purchased had been theretofore sold to Vera M. Owen. Whatever became of Mrs. Stanley's coat no one apparently knows. The fact is, she did not receive it when she paid the balance of her money, and the coat which was offered to her was not the one she had selected. The evidence sustains this conclusion. Of course, upon these facts alone these two transactions, the defendant could not be found guilty of larceny, as defined by our penal law. It is at this point the people, therefore, attempted to prove that the officers of the corporation had instructed the employees to resell the coats held on deposit, and that this was the method of doing business. When a coat was purchased and the deposit paid, instead of keeping the coat for the purchaser, as the defendant promised to do, until the balance was paid, the course of business was to resell the coat many times, and deliver it to whomever first paid the full purchase price. Such facts, if proved, would no doubt establish larceny by the corporation. The difficulty arises over the failure of this proof. [6, 7] Two witnesses apparently knew the custom and method of doing business carried on by the defendant in its Buffalo store. Mrs. Stella Nowicki was the saleslady through whom Mrs. Stanley purchased the fur coat, and Alexander H. Shack was the general manager of the store, who knew about the instructions which had been given to the salesladies and others regarding sales. Both were witnesses for the people, and attempted to testify to the instructions given by or in the presence of Mr. Morris Dornfeldt, one of the officers of the company. Morris Dornfeldt was the officer in charge at this time of the Buffalo store. The district attorney fully appreciated the importance and necessity of the testimony of these two witnesses. He repeatedly tried to bring out from them the fact that coats purchased and put aside with a "will call ticket" on them were resold under the instructions of the Dornfeldts, and that such was the regular and customary way of doing business. In these attempts he was frustrated by the rulings of the trial judge. He not only sustained objections to such line of testimony and struck out evidence of this nature when it was introduced, but ruled that the people must confine their evidence to specific instances and to a very limited time in the summer of 1926. Although these rulings were erroneous, yet we cannot consider the evidence stricken out as evidence in the case simply because the nature of it appears in the printed record. One or two illustrations will bear out these statements. The witness Nowicki was asked: "Q. Did Mr. Dornfeldt, Mr. Fish, or Mr. Johnson, or any manager or any man in the head of the firm with relation to the Fields Store, ever instruct you in regard to the selling or reselling of coats on which there had been made a deposit? A. Yes, sir. "Q. Who gave you those instructions or this one you are referring to? A. There would be Mr. Fish "Q. Just tell what Mr. Fish told you in that regard. A. Mr. Fish said that the coats were in stock we should try to sell, and, if there is any coats we couldn't satisfy a customer, with small deposits, we should go and get those coats, and not mention anything that the coat was a deposit, and take the ticket off, and show the customer, and, if the customer should say, 'Why wasn't the coat in here?' We should say, 'The coat just came in and hasn't been in stock,' where the coat was already sold perhaps two or three times, and two or three tickets on it." The court struck out the part of the answer, "where the coat had been sold," which, of course, was the part important to the case. With this part stricken out the answer simply means that the customer was shown a coat which had been set aside as sold. This is no evidence of wrongdoing. The only other evidence she gives regarding instructions is as follows: "Mr. Dornfeldt, the night just before the opening, he said: 'Girls, you got the instructions from Mr. Shack, and I wish you would all understand and try your best to-morrow and see how many coats you can sell with Mr. Shack's instruction, and, if you can't do anything, I will be on the floor to-morrow, and also Mr. Shack, Mr. Johnson and Mr. Fish, and, if you can't do any sale, if you can't sell the coats in the stock, if you can't sell the coats with deposits, call one of us men, and we will see what we can do to the customer." Mr. Alexander H. Shack also attempted to testify to the above instructions and customs. His line of testimony ran something as fol lows: "Q. Did you ever give instructions to the saleswomen in your capacity as superintendent or to Mr. Fish or Mr. Johnson in regard to the resale of coats on which there had been made a deposit? A. No; it was sort of an unwritten law without instructions." This also was stricken out by the court. "Q. Were you ever present at any time during the months of July and October, 1926, when you heard any of the Mr. Dornfeldts or Mr. Johnson or Mr. Fish instruct the saleswomen in regard to the re-sale of coats on which there had been made a deposit? A. I was, yes." He was asked what the conversation was, and this is his answer: **" in the month of August I heard Mr. Johnson at one time advise, instruct, and I heard Mr. Fish at another time in August on another coat. But this particular coat Mr. Johnson instructed the saleswoman to go to the sold coats and get the size to show to her." It is reasoned by the people that the defendant could not have carried on business by keeping many $300 coats in storage upon which only a deposit of $25 or less had been made the capital invested would be too great to do a profitable business. This may be so, and yet such reasoning may not supplant proof of the felonious method of doing business. Standing alone and by itself, such reasoning would be insufficient to prove larceny. Naturally we can infer from the evidence stricken out by the court that the defendant resold the deposit coats many times, but the jury were not justified in considering such evidence. It was not part of the case against the defendant, although printed in this record on appeal. We must strip the case of all such evidence. This leaves the charge against the defendant resting upon the sale to Mrs. Stanley and the evidence of the resale or attempted resale later of Mrs. Owen's coat to Mrs. Stan ley. The defendant's officers and employees denied that they had resold Mrs. Stanley's coat or that such was their method of doing business. Under the law as correctly charged in this case by the trial judge, the defendant corporation was criminally liable only for such felonious acts as it had authorized through the Dornfeldts, the officers of the corporation, or for such acts as through a course of business must have been known to the corporation and its officers, and thus authorized by them. The people failed to prove that the officers or any one acting as manager of the Buffalo store, in the place and stead of the officers, had authorized a resale of the complainant's coat; and further that, if the complainant's coat was resold, the resale of purchased coats was a continuous and established practice in the defendant's establishment. [8] The appellant insists that there was no evidence to show that title to the coat had ever passed to Mrs. Stanley. We think that (161 Ν.Ε.) this was a question of fact properly submitted to the jury. The evidence was that such coats were sold upon a small down payment, then set aside and held for the customer, marked with a ticket, called a "will call ticket," indicating the purchaser's name and address. The defendant's officers denied that these coats were ever resold but claimed to hold such goods for the customers as the customers' property. Such meaning, we think, could be given to the guaranty contained upon the back of the purchase slip handed to Mrs. Stanley. This reads, "Fields free storage for a period of three years, including insurance against fire and burglary." The insurance would only be interesting to the purchaser in case the title to the property was in her. Taken in connection with section 100 of the Personal Property Law (Consol. Laws, c. 41), we think it was at least a question for the jury to determine whether title to this fur coat had passed, or was intended to pass, to Mrs. Stanley at the time of her purchase. Of course, if no title had passed, there could be no larceny by the defendant. herein, shall be paid out of the residue of my estate," transfer tax on the trust property was required to be paid by the appointee, and_not by the residuary legatee, under Act Pa. June 20, 1919, P. L. 521 (Pa. St. 1920, $ 20467), deferring payment of tax on estate until person liable comes into actual possession thereof by termination of previous life estate, since the transfer which was taxed was that of the original testator, and not of the donee of the power of appointment. Appeal from Supreme Court, Appellate Division, Second Department. Petition by Roxy Corlies Trainer for an order directing petitioner's reimbursement for taxes paid by Thomas B. Scott, as executor of the last will and testament of Millicent D. Scott, deceased. An order of the Surrogate's Court (224 N. Y. S. 91), directing the payment of the tax by the executor out of the residuary estate, was affirmed by the Appellate Division (222 App. Div. 824, 226 Ν. Υ. S. 914), and the executor appeals by permission. Order of Appellate Division and Sur There are other rulings which we think rogate's Court reversed, and petition dis were not quite correct, but it is unnecessary to refer to them, as, in view of what is here said, the judgment of the Appellate Division and that of the county court should be reversed, and a new trial ordered. Court of Appeals of New York. May 1, 1928. 1. Taxation 856-State may tax exercise of power of appointment as transfer. State is privileged to say that the exercise of the power of appointment under a will shall be treated as equivalent to a transfer by the donee of the power, and thus may be taxed as transfer, as is done by Tax Law (Consol. Laws, c. 60) § 220, subd. 4. 2. Taxation891-Tax on transfer of trust property to person designated by life tenant in exercise of power of appointment held payable by appointee, notwithstanding life tenant's will provided for payment of inheritance taxes from residue (Act Pa. June 20, 1919, P. L. 521 [Pa. St. 1920, § 20467]). Where testator gave daughter life estate in trust property with power of appointment, and daughter exercised power in will containing provision that all inheritance taxes "payable by my estate, or payable on the legacies given missed. W. G. Murphy, of New York City, for appellant. Ewing R. Philbin and Garrett A. Brownback, both of New York City, for respondent. CARDOZO, C. J. Louis Dreka, a resident of Pennsylvania, died in 1922, leaving a will, proved in that state, whereby, he gave to trustees $150,000 to pay the income to his daughter, Millicent D. Scott, during her life, and to pay the principal upon her death "to such persons and institutions as she by her last will and testament may appoint, and in default of any appointment to those of my daughter's next of kin who would be entitled thereto under the intestate laws of Pennsylvania." A statute of Pennsylvania provides that, where there is a taxable transfer "to take effect in possession or to come into actual enjoyment after the expiration of any one or more life estates, the tax on such estate shall not be payable, until * * * the person liable for the same shall come into actual possession of such estate by the termination of the estates for life." Act Pa. June 20, 1919, P. L. 521 (Pa. St. 1920, § 20467). The rate varies according to the relationship, being 2 per cent. for husband or wife, parents, or lineal descendants, and 10 per cent. for others. The beneficiary of the trust, Mrs. Scott, died in Suffolk county, New York, in 1926. The question before us involves the construction of a provision of her will. In exercise of |