dence indicated that the defendant was purposely making this commission work cost as much as it could for the purpose of swelling its commissions. These various incidents, together with the evidence of the alleged experts and the absence of all explanation, were persuasive evidence that the defendant was illegally obtaining moneys from the state as charged. At least there was sufficient evidence to put the defendant upon its defense. It could by measurement have shown the amount of cement and material in place, and could approximately have shown the amount of labor required for the work, and competent experts, by showing how the work was done and by critical examination of it, could give a reasonable judgment as to the actual cost of it in the manner in which the state required it to be done. If the evidence of the experts as to the actual cost of the work was not of the most satisfactory nature, it must be remembered that the defense furnished no evidence upon the subject, and many earmarks indicated that the contract had not been honestly performed and that false accounts were rendered the state.

[4] The defendant also urges as a ground for reversal that many acts were proved which did not relate to this particular contract, which in substance were crimes in themselves as proved, and that the defendant, while being tried for one crime, has been prejudiced by evidence. that other crimes were committed, not by the defendant corporation itself, but by some of its employés, officers, or servants. Under the indictment the people were required to prove that the defendant knowingly obtained the money from the state by false and fraudulent vouchers, and also had to face the statutory provision (section 1306 of the Penal Law) that:

"Upon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable."

It was shown by the vouchers presented to the representative of the architect upon the ground that 200 barrels of lime were used in this work. The evidence shows clearly that not one barrel was used. This did not necessarily convict the defendant of a crime. The lime. may have been bought for use upon one of the other contracts relating to the prison, where a lump sum was to be paid, and by mistake might have been charged to this job. Each of the other incidents tending to show wrong, if standing alone, might be met by the same answer, and many of them together might be disposed of in the same way. It therefore became necessary for the plaintiff to prove that the defendant's acts were done in carrying out some scheme for defrauding the state. Where the intent with which an act is done is not clear in itself, and it is necessary to show the particular intent, other acts at about the same time, of a similar nature, under like circumstances, even though constituting a crime in themselves, may be shown, not for the purpose of proving that the defendant has probably committed this crime, because he had committed others, but for the sole purpose of characterizing the intent or purpose in doing the act charged. People v. Katz, 209 N. Y. 311, 103 N. E. 305; People v. McKane, 143 N. Y. 455, 38 N. E. 950.

[5] The acts of the defendant's agent, if committed without its knowledge or consent, cannot convict it of crime. The court so charged. But here the acts that were committed by subordinates were of the same character and quality, upon the same work, and for the same purposes as the acts which the immediate representatives of the defendant were committing or permitting. These acts were not proved as separate independent acts of employés, but were proved as a part of the res gestæ, showing how the work was being done and the manner of its progress. If men were told by their bosses not to hurry, to take their time, and the officers and the immediate representatives of the company knew that the men were idling away their time and not faithfully working, such declarations in themselves are of little importance, but may be considered as characterizing the work, and as a part of it. In other words, the men did not work well, because they were acting under orders to that effect. The various facts disclosed were such that the defendant and its officers must have realized the situation, and the men must have been carrying out the orders of the company, or doing the various acts with its permission and consent. Many of the wrongful acts shown were not committed in straightening up and rebuilding the wall of the dormitory under the contract in question. They all, however, took place at the Great Meadows Prison, which was being built by the defendant for the state, mostly upon the commission plan. There were different contracts, but each in a manner was supplementary to the others. But one work was being done, the construction and equipment of the prison. So that in a way none of the matters shown were entirely foreign to and outside of the particular offense charged. In a way they related to and formed a part of the same general transaction. And while all the acts were not of the same nature or same class of wrong, each when connected with the others tended to show that the defendant under its contracts with the state relating to this prison at this time was intentionally defrauding the state. The evidence tended to show that improper credits were given the state for items which the defendant received from the state under an understanding that the credit was to be given. The defendant cut hay from the premises and was to credit the state with its value. It omitted a credit of over $500. It is alleged that this evidence proved, if anything, a stealing of the hay, a crime of a different character than the one under trial. The charge, as the people were proving it, was that the hay was properly taken, but by putting in a fraudulent voucher as a credit the defendant was enabled to obtain from the state $500 in money which it otherwise could not have obtained.

[6] The architectural engineer received $12.50 for a day when he was not engaged upon the work. During his absence, Collier, the inspector of the State Architect, inquired of the defendant's superintendent where the engineer was, and received answer: "It is raining this morning; I suppose he didn't come up." The reception of this evidence was not error. It was material, as tending to show that the defendant knew it was paying for work not done.

Time checks given to the witness McGarr satisfied him that some of

his time was charged against this contract which rightly belonged to one of the other jobs. The superintendent called all the laborers into his office, and asked them if they had ever received any checks which they thought were incorrectly marked, and then asked McGarr in person, who stated that he thought he had. The superintendent then asked him if he knew where the different jobs on the work, naming them, were, and he admitted he did not know some of the jobs named. The superintendent told him that he was incompetent to say whether the checks were correctly or incorrectly marked, and prepared and had him sign a writing stating where his time for the preceding week had been distributed, and certifying that he was incompetent to judge whether or not the amounts were properly distributed. Later McGarr asked the superintendent if he could be continued on the job during the winter, and he replied: "I could if I would keep my mouth shut on what I saw and what I heard." This evidence, in connection with the other testimony of McGarr, bore upon the question whether the defendant, through its officers, knew that the men were paid for work on jobs where they had not worked, and the fact tended to prevent any inquiry in that respect. It also indicated that the defendant and its officers knew what was transpiring upon the job and were trying to keep it secret.

The people attempted to show that the settlement of the wall resulted from defendant's fault. The attempt failed. But in making proof it appeared that concrete was being put in soft, wet ground. Hubbard heard Hennessey, the foreman, say at the time to Hammel, the superintendent, that he thought it was a shame to put the stuff in there in the condition in which it was, to which Hammel replied: "We got our orders to do it, so go ahead; it is up to them." This declaration may be considered as characterizing and forming a part of the work, and tended to show a knowledge of the defendant and its officers that the work was being improperly performed. At the time the evidence was introduced it was competent, as bearing upon the question then under consideration.

The different wrongs relating to this prison work, when associated, tend to characterize the defendant's acts, and indicate that in completing this prison it was seeking every opportunity to obtain money not justified by its contract, and that the particular wrongful charges made by the defendant against the state were not made in good faith, but with the intent of illegally obtaining money from it.

We find no error calling for a reversal of the judgment. So many facts appear tending to show the commission of the crime as charged that it would see a triumph of technicality over substance if this judgment could be reversed on account of the admission of testimony relating to incidents trivial in themselves. The case as submitted to the jury, aside from any questionable declarations or incidents, could not have resulted otherwise than it did. The charge was remarkably full, clear, and fair.

The judgment of conviction should therefore be affirmed. All concur, except HOWARD, J., who dissents.

151 N.Y.S.-21

BARNES v. ROOSEVELT.

(Supreme Court, Appellate Division, Third Department. January 15, 1915.) COSTS (§ 69*)-APPEAL-EXPENSES OF RECORD.

Where the disbursements as taxed and awarded to appellant were principally for printing the record, a great part of which was occupied by appellant's unsuccessful effort to establish that officials of a county charged with preparing jury lists and drawing a jury would not fairly perform such duty, and with the plaintiff's reply to such charge, they would be directed to abide the event of the action.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 247, 256; Dec. Dig. § 69.*]

Motion for resettlement of order, so as to provide that the costs and disbursements awarded to the appellant should abide the event of the action. Motion granted.

See, also, 150 N. Y. Supp. 30.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Ivins, Mason, Wolff & Hoguet, of New York City, for the motion. Bowers & Sands, of New York City, opposed.

PER CURIAM. Ten dollars costs and the disbursements were allowed to the appellant according to the usual practice in this court on such motions. This motion, for a resettlement of the order, calls attention to facts which, in our judgment, should take this case from the ordinary rule. The disbursements, as taxed, amount to $303.67, which are principally for printing the record. A great part of the printed record was occupied by the defendant's effort to establish that the officials of Albany county, charged with the duty of preparing jury lists and drawing a jury, would not fairly perform that duty, and with the plaintiff's reply to that charge. Defendant wholly failed in that contention. Under the circumstances, it seems proper that the costs and disbursements awarded to the appellant should abide the event of the action.

The motion is therefore granted.

PEOPLE v. GROUT.

(Supreme Court, Appellate Division, Second Department. January 15, 1915.) CRIMINAL LAW (§ 1023*)-APPEALABLE ORDERS-INTERMEDIATE ORDER. Under Code Cr. Proc. § 517, specifying an appeal as the only method of review in a criminal action, and providing that any intermediate order forming a part of a judgment roll, as prescribed by section 485, may be reviewed, an order denying a motion to set aside an indictment and to dismiss it for lack of prosecution, and remitting it to the County Court, though not specifically mentioned in section 485, could not be reviewed by a direct appeal, but only on appeal from a judgment of conviction; the jurisdiction to review criminal proceedings being wholly statutory, and nonexistent unless expressly conferred.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Special Term, Kings County.

Edward M. Grout was indicted for perjury. From an order remitting the indictment to the County Court, defendant appeals. Appeal dismissed.

See, also, 85 Misc. Rep. 570, 147 N. Y. Supp. 591; 151 N. Y. Supp. 325.

Argued before BURR, THOMAS, RICH, and PUTNAM, JJ.

Stephen C. Baldwin, of Brooklyn, for appellant.

James C. Cropsey, Dist. Atty., of Brooklyn (Hersey Egginton, Asst. Dist. Atty., of Brooklyn, on the brief), for the People.

RICH, J. The appellant asks that so much of the order as remits the indictment for trial to the County Court of Kings County be reversed, and the learned district attorney contends that we are without power to consider this appeal for the reason that no independent direct appeal is authorized. The law, as established by a long and uniform line of decisions, is, as stated by the Court of Appeals in its latest utterance upon the subject:

"The appellate jurisdiction of the courts of this state in criminal cases is purely statutory; and, of course, such jurisdiction can never be assumed, unless a statute can be found which expressly sanctions its exercise." People v. Zerillo, 200 N. Y. 443, 93 N. E. 1108.

The Code of Criminal Procedure provides a system of practice and procedure, extensive and complete in itself, governing the procedure in all criminal cases, including appeals. Sections 962, 515, Code of Criminal Procedure; People v. Green, 137 App. Div. 763, 122 N. Y. Supp. 571. Section 517 of the Code specifies the only appeal and method of review available to defendant in a criminal action, and under the provisions of that section orders may be reviewed only as intermediate orders, incidental to, and upon, an appeal from the judgment of conviction. Orders may not be reviewed by a direct appeal, independent of an appeal from a judgment of conviction. People v. Zerillo, supra; People v. Green, supra; Matter of Jones, 181 Ñ. Y. 389, 74 N. E. 226; People v. Trezza, 128 N. Y. 529, 28 N. E. 533; Matter of Montgomery, 126 App. Div. 72, 110 N. Y. Supp. 793; People v. Wendel, 128 App. Div. 437, 112 N. Y. Supp. 837; People v. Martin, No. 1, 99 App. Div. 372, 91 N. Y. Supp. 486; People v. Rutherford, 47 App. Div. 209, 62 N. Y. Supp. 224; People v. Lazersohn, 147 App. Div. 227, 131 N. Y. Supp. 1012; People v. Markham, 114 App. Div. 387, 99 N. Y. Supp. 1092; People v. Kahn, 155 App. Div. 821, 140 N. Y. Supp. 618; People v. Hyde, 146 App. Div. 633, 131 N. Y. Supp. 567; People v. Herbert, 152 App. Div. 579, 137 N. Y. Supp. 409; People ex rel. Hummel v. Trial Term, 184 N. Y. 30, 76 N. E. 732.

It is contended by the learned counsel for appellant that the provisions of section 517 do not apply to the appeal under consideration because of the language, which he construes as prohibiting the review of an intermediate order upon an appeal from a judgment of conviction, unless it forms a part of the judgment roll as the same is prescribed by section 485. He argues that the order is not an intermediate order,