Fourth Department, March, 1908. [Vol. 125. It is alleged that on and after a certain day the defendant had installed, was operating and was receiving revenues from 1,000 telephones; that on and after a certain other day it had installed, was operating and was receiving revenues from 2,000 telephones; that after a certain other day it had installed, was operating and was receiving revenues from a much larger number of telephones, the number of which was unknown to the plaintiff, and the action was brought to recover the percentages provided for in the 17th clause of the franchise upon the gross earnings concededly received and to compel an accounting by the defendant disclosing the revenues received by it from telephones in excess of the 2,000 mentioned in the franchise. The learned trial judge in the interlocutory judgment directed judgment in favor of the plaintiff for the amount alleged to be due, and directed that the defendant should account for the percentages on its gross earnings upon telephones installed and operated by it in excess of the 2,000 mentioned in the franchise. There is and there can be no denial by demurrer of these facts alleged in the complaint. So that we come to the proposition, can the defendant repudiate the agreement solemnly made by it, in substance, that it would pay to the city of Jamestown a certain percentage of its gross earnings in consideration of the rights given to it under the franchise which it sought and obtained from such city? For the purposes of this appeal we may assume, without deciding, that an agreement so made is void and without consideration, however formally expressed, if the municipality had no right under the law to exact such conditions. But, as we have seen, the city of Jamestown was by its charter given the right to prevent any telephone or telegraph company from setting its poles or stringing its wires in said city. Not only was it given authority to prevent, but it was given the power to prevent or regulate. Under plaintiff's charter, it was competent for it to prevent any corporation from setting poles or stringing wires upon its streets. Such were the express words of the charter. By the franchise in question it gave to the defendant such right upon certain conditions, which were accepted by the defendant, but which are now sought to be repudiated. The only question presented by this appeal is, was the power App. Div.] Fourth Department, March, 1908. given by its charter to the city of Jamestown to prevent a telephone company from doing business within its jurisdiction repealed by the Transportation Corporations Law; and, really, the question presented is, did the Legislature intend by the passage of such Transportation Corporations Law to repeal the power conferred in the premises upon the city of Jamestown by the charter granted to it? Under such charter it is set forth in express language that the municipality may prevent the erection of telephone poles, or the stringing of its wires. Is there anything in the Transportation Corporations Law which by implication or otherwise can nullify such right or authority conferred by special statute upon the city of Jamestown? It seems to us that it is axiomatic that such special statute must be repealed, if at all, by express enactment of the Legislature; that it cannot be accomplished by implication. There is nothing in the act authorizing the incorporation of the defendant, which, as it seems to me, by any implication can abrogate the right of the plaintiff to prevent the installation by the defendant of a plant or system which shall obstruct the streets of said city. If this proposition is correct the plaintiff had the right to reject the defendant's application for a franchise to do business in its city, and if so, it would seem axiomatic that such city had the right to impose such conditions as were reasonable and in the interests of its inhabitants. We think there is no implication of repeal of the Jamestown charter in the Transportation Corporations Law. (Parker v. Elmira, Cortland & Northern R. R. Co., 165 N. Y. 274.) The authorities relied upon by the appellant (Wright v. Glen Telephone Co., 112 App. Div. 745; Village of Carthage v. Central N. Y. Tel. Co., 185 N. Y. 448, and other similar cases) are cases in which the municipality was given only the power to regulate and in which it was held that under such provision such municipality could not exact that compensation should be paid to it as a consideration for a franchise. In the case at bar, as we have seen, the plaintiff had the power to prevent the defendant from installing, maintaining or operating a plant or telephone system within the city and this authority to prevent, as it seems to me, is absolutely fatal to defendant's contention, unless such right to prevent was taken from such city by the Transportation Corporations Law. Fourth Department, March, 1908. [Vol. 125. It seems to be well settled that special and local laws are not deemed repealed by general legislation unless the intent to do so is clear. ""Ordinarily an express repeal by some intelligible reference to the special act is necessary to accomplish that end." (Aldinger v. Pugh, 57 Hun, 181; Buffalo Cemetery Assn. v. City of Buffalo, 118 N. Y. 61; Stack v. City of Brooklyn, 150 id. 335; Parker v. Elmira, Cortland & Northern R. R. Co., 165 id. 274.) In the case at bar there certainly is no language in the Transportation Corporations Law which can be deemed to repeal the provision of the plaintiff's charter to which attention has been called, and we think there should be no undue effort to accomplish or bring about such result by implication. The defendant entered into the agreement in question, accepted the franchise and the conditions thereby imposed, none of which was against good morals or in any manner in conflict with public policy. It received and accepted the benefits thus conferred upon it and certainly there is no reason in equity why it should not keep and perform the duties and obligations imposed upon it by the franchise which it accepted, and under which it installed and is maintaining and operating its plant in the plaintiff city. As we have said, it seems to us that under its charter the plaintiff had full power and authority to prevent the defendant from doing business in said city, but after negotiating and considering all the conditions the plaintiff consented that the defendant should install, maintain and operate a telephone system and plant in such city upon the condition, among others, that it should pay to the municipality certain percentages of its gross earnings. The defendant accepted such franchise, agreed to keep and perform the obligation thereby imposed, and we see no reason for holding that such obligation was not in all respects binding upon the defendant. We conclude that the interlocutory judgment appealed from should be affirmed, with costs. All concurred. Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal. App. Div.] Fourth Department, March, 1908. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. HERBERT C. MEAD, Respondent. Fourth Department, March 4, 1908. Crime - larceny - sufficiency of indictment complainant. corporate character of An indictment which charges the defendant with stealing from and misappropriating money belonging to another concededly not his own is a good indictment, and it is not essential to allege the character of the person, corporation or entity from which he stole it or whose money he so misappropriated, provided always that it be alleged that it was not his own. APPEAL by the plaintiff, The People of the State of New York, from a judgment of the County Court of Ontario county, entered in the office of the clerk of said county on the 9th day of December, 1907, sustaining the defendant's demurrer to an indictment which charged him with the crime of grand larceny in the first degree, and dismissing said indictment. Such indictment was found by the grand jury of Ontario county on the 9th day of May, 1907. It was alleged therein, in substance, that the defendant, with intent wrongfully, unlawfully and feloniously to deprive and defraud the People's Mutual Life Insurance Association and League of the sum of $738.67, then and there belonging to such life insurance association, appropriated the same to his own use and did then and there feloniously steal, take and carry away the money and property belonging to such life insurance association. Practically, the only ground of the demurrer which is insisted upon or argued upon this appeal is that the indictment does not allege the corporate character, or otherwise describe the person or entity from whom the money was stolen, except by name. This feature of the demurrer, as I understand it, presents the whole question involved upon this appeal. Myron D. Short, District Attorney, for the appellant. E. A. Griffith, for the respondent. 1 MCLENNAN, P. J.: cents * * * Fourth Department, March, 1908. * * * [Vol. 125. *** As we have seen, the indictment, among other things, charges that the defendant having in his possession, custody and control as agent for "The People's Mutual Life Insurance Association and League the sum of Seven hundred thirty-eight dollars and sixty-seven then and there belonging to The People's Mutual Life Insurance Association and League, with intent wrongfully, unlawfully and feloniously to deprive and defraud the said People's Mutual Life Insurance Association and League of the same. and to appropriate the same to the use of him, did then and there feloniously and unlawfully appropriate" and steal the same. I do not understand that in any case upon indictment for larceny it is necessary to allege the corporate or other existence of the true owner. The only case where such allegation in the indictment has been considered necessary is where it was necessary, in order to show that the defendant had not been stealing or misappropriating property which belonged to himself. Such allegation was never deemed necessary when it appeared that the defendant was charged with stealing and appropriating property belonging to another and which did not belong to himself. The crime of larceny consists of two essential elements, first, the misappropriation, and, second, the accompanying intent. Evidence of ownership is, therefore, admissible, even necessary, in proving the misappropriation, since one may not usually wrongfully appropriate his own property. But it is as much a crime to steal one person's property as another's. The ownership of the property is not an essential ingredient of the crime so long as it appears that the title to the same is not in the accused. We think the crime is complete when it appears that the property feloniously taken or appropriated was not the property of the accused, and this fully appears by the indictment in question. It is not necessary to show that the defendant knew whose property he was taking so long as it is alleged that he knew it was not his own. Under sections 283 and 284 of the Code of Criminal Procedure an indictment is now good if it contains sufficient averments to inform the defendant of the nature of the accusation against him and enables him to prepare his defense, and when the record may be admitted as a bar to a second prosecution of the same offense. |