Loomis v. People. no absolute right to the same, nor transferred any title to the bills before the contingency of the loss occurred, and the use of the money was but temporary, and for a specified object. Certainly when it appeared that no loss had happened, the temporary possession was at an end, and to all intents and purposes the money reverted to the prosecutor. The alleged loss, brought about by the criminal and fraudulent conduct of the prisoners, could not change the title, or in any way transfer the ownership to them. They did not thereby acquire any right, and it cannot seriously be questioned that at this time, if not before, the prosecutor would have been justified in taking the money forcibly, or could have maintained an action for the recovery of the same identical bills. It was his money, and the conversion of it by the prisoners, before it was won, was without a semblance of lawful authority, and, as the jury have found, with a felonious intent. It was a clear case of larceny, as marked and significant in its general features as if the prisoners had wrongfully seized and appropriated it when first produced. The form of throwing the dice was only a cover; a device and contrivance to conceal the original design, and so long as there was no consent to part with the money, does not change the real character of the crime. While the element of trespass is wanting and the offense is not larceny, where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi, yet as is well said by a writer upon criminal law : "It is different where, with the animus furandi, a person obtains consent to his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said to be against it. Consent to deliver the temporary possession is not consent to deliver the property in a thing, and if a person, animus furandi, avail himself of a temporary possession for a specific purpose, obtained by consent to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is. therefore, acting against the will of the owner, and is a trespasser, because a trespass upon the property of another is only doing some act upon that property against the will of the owner." In the case at bar there was no valid agreement to part with the Loomis v. People. money absolutely, and no consent to divest the owner of his title. It was passed over for a mere temporary use at most, and the legal title remaining in the owner, the conversion of it by the prisoners within the rule cited was larceny. The reports are full of familiar illustrations of this rule, as a reference to some of the leading cases will show. In Hildebrand v. The People, supra, a fifty dollar bill delivered to the prisoner to pay ten cents and return the change, was kept by him, and it was held to be larceny. It was intended that after taking out the ten cents other money should be exchanged, and to this extent and for this purpose the prisoner had lawful possession of the money. In that case, as here, the money was not absolutely parted with, but surrendered for a specific purpose and the custody temporarily transferred. It is true that in the case last cited, the delivery was held not to be complete until the change was returned, but that does not alter the principle when there was but a temporary possession, as there was no transfer of the ownership. See, also. The People v. McDonald, supra. Nor does it change the aspect of the case, when by trick or device the owner is induced to part with the custody or naked possession of property for a special purpose to one who receives it animus furandi, and still means to retain a right of property. Smith v. The People, 53 N. Y. 111. In Rex v. Turner, 1 Leach, 305, where the prosecutor was decoyed into a public house and money obtained from him for the purpose of playing at cards, and appropriated by the prisoner, it was held that if there was a preconcerted plan to obtain the money, and an animus furandi, it was felonious. This case is analogous and directly in point, and it is difficult to draw any distinction between the case cited and the case at bar, as there was quite as strong ground for finding the felonious intent in the latter case as in that cited. In Rex v. Robson, R. & R. C. C. 413, where there was a plan to cheat the prosecutor out of his property under color of a bet, and he parted with the possession only to deposit it as a stake with one of the confederates, the taking was held to be felonious. This case is directly in point, and as a decision by the twelve judges is entitled to great weight. The cases referred to without citing others which bear in the same direction are sufficient to sustain the conviction, and the cases which have been cited as upholding the principle that there was no such parting with the property as to constitute larceny, do not, I think, go to the extent which is Security Bank v. The National Bank of the Republic. claimed. After a careful examination, without considering them in detail, suffice it to say, that perhaps a single exception, Reg. v. Thomas, 9 C. & P. 741, which was a nisi prius decision, and is criticised in the opinion in Hildebrand v. The People, they are all clearly distinguishable from the case now considered, and the weight of authority is decidedly in an opposite direction. There is to be sure a narrow margin between a case of larceny and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. In the former case, where by fraud, conspiracy or artifice, the possession is obtained with a felonions design, and the title still remains in the owner, larceny is established. While in the latter, where title, as well as possession, is absolutely parted with, the crime is false. pretenses. It will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges, and is to be determined. Although the present case is on the border line, yet it is quite clear that it was, as the evidence stood, a fair question for the jury to decide as to the intent of the prisoners feloniously to take the money, and as to the intention of the prosecutor to part with the ownership of the same. These questions were fairly submitted by the judge to their consideration, and as there was no error in the charge, or in any other respect on the trial, the conviction must be affirmed. All concur; RAPALLO, J., absent. Judgment affirmed. SECURITY BANK V. THE NATIONAL BANK OF THE REPUBLIC. (67 N. Y. 458.) Declarations of bank teller. Certification of check· By certifying a check a bank undertakes only that the signature is genuine, that the plaintiff has sufficient funds in the bank to meet it and that these funds shall not be withdrawn, and extrinsic evidence is not admissible to prove the understanding of merchants and bankers as to the effect of a certification. VOL. XXIII. - 17 Security Bank v. The National Bank of the Republic. The teller of a bank upon certifying a check assured the person presenting it that "it was all rig nt in every particular," and thereupon the latter accepted it in payment for property then delivered. The check had been raised." Held, that the bank was bound only for the original amount of the check and that the declarations of the teller would bind the bank only as to the signature. A CTION to recover money alleged to have been paid by mistake upon a "raised" check. The check was drawn upon the plaintiff by Cipperly & Co. to the order of J. Cox, for $24.16. It was afterward altered as to the date, the name of the payee was erased and that of Duff & Tienken inserted, and the amount was raised to $4,222.75. Thus altered, the check was offered to Duff & Tienken, gold brokers, for gold. One of said firm testified that he went with the check to plaintiff's bank, told the teller that he did not like the looks of the messenger who brought the check to them; that he was a total stranger, and that he wanted the teller to be very particular before certifying the check; that he, Duff, had a doubt in his mind about it, and he wanted to be assured that the check was genuine in every particular." The teller examined it, certified it, and handed it back, saying, "you need not have the slightest doubt about that check, it is correct in every particular; the drawer is a director of this bank." The check was thereupon received by Duff & Tienken in payment for the gold. On the trial defendant offered to "show, by the testimony of various persons engaged in the business of bankers and merchants and dealers with banks, that the word 'certified,' as used upon the check now in suit, at the time of the certification, was commonly understood to import an obligation on the part of the bank to pay the amount expressed upon the face of the check so certified, notwithstanding that it may have been forged in the body;" also that, "under such circumstances, it was the custom among banks, and merchants and dealers with banks in the city of New York, to so construe the word certified,' indorsed upon the check, as to import an obligation to pay the amount, as stated in the check, when it was certified, notwithstanding the body of the check was forged." This evidence was objected to and excluded, and defendant's counsel duly excepted. Defendant's counsel asked the court to charge that if Duff & Tienken relied upon the assurances of the teller, and parted with Security Bank v. The National Bank of the Republic. the gold upon the faith of such assurances, plaintiff was estopped from questioning the genuineness of the check. The court refused so to do, and said counsel duly excepted. Said counsel also asked the court to submit to the jury the question whether the teller made the representations, and whether Duff & Tienken relied upon them in parting with the gold. Plaintiff's counsel conceded, for the purposes of the trial, that the transaction when the check was certified was as stated by the witness. The court refused so to do, and directed a verdict for plaintiff for the amount claimed. Defendant's counsel duly excepted. A verdict was rendered accordingly, and the judgment thereon was affirmed by the General Term. Wheeler H. Peckham, for appellant. The court erred in excluding evidence of the meaning of the term "certified." Marine Bank v. Nat. City Bank, 59 N. Y. 74; S.C., 17 Am. Rep. 305; Downs v. Sprague, 2 Keyes, 57; Grant v. Maddox, 15 M. & W. 737; Gray v. Harper, 1 Story, 574; Child v. Sun Mut. Ins. Co., 3 Sandf. 26; Mackenzie v. Dunlop, 3 Macg. S. App. Cas. 22; 2 Jur. (N. S.) 957; Ghose v. Manickchund, 7 Moo. Ind. App. 263; Adams v. Peters, 2 C. & K. 723. Plaintiff was estopped by what occurred at the time of the certification from denying the validity of the check. Brown v. Bowen, 30 N. Y. 541; Plumb v. Ins. Co., 18 id. 392. Charles Tracy, for respondent. The evidence tending to show the alleged customary interpretation of the word "certified," as used in certifying checks, was properly excluded. Marine Bank v. Nat. City Bank, 59 N. Y. 67; Bargett v. Or. Mut. Ins. Co., 3 Bosw. 385, 397; Many v. Beekman Iron Co., 9 Paige, 188, 195; Higgins v. Moore, 34 N. Y. 417, 422; Lawrence v. Maxwell, 53 id. 19, 21; Markham v. Jaudon, 41 id. 235, 245; Walls v. Bailey, 49 id. 470; Higgins v. Moore, 34 id. 417, 425; Wheeler v. Newbould, 16 id. 392, 402; Groat v. Gile, 51 id. 431; Walls v. Bailey, 49 id. 464, 474; Sipperly v. Stewart, 50 Barb. 68; 2 Pars. on Cont. 53; 2 Greenl. Ev., § 251. It was not within the province of the teller to give assurances that the check was correct in every particular. Watson v. Bennett, 12 Barb. 196, 200; Barrick v. Austin, 21 id. 241, 242; U. S. v. City Bk. of Columbus, 21 How. (U. S.) 356, 364, 365. ANDREWS, J. In the Marine National Bank v. The National City Bank, 59 N. Y. 67; S. C., 17 Am. Rep. 305, it was decided |