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500 in money, belonging to the county of Erie. The defendants were tried separately. Conover was tried and convicted at the Erie Trial Term, and Neff was tried at the Wyoming Trial Term; he having made a motion to remove the action from Erie county, which was granted, and the place of trial changed to Wyoming county. He was tried at an extraordinary term appointed by the Governor, in July, 1906. The indictment contained a second count, also charging the crime as receiving stolen property; but that count was withdrawn from the consideration of the jury, and the defendant was convicted upon the first count, charging the offense as grand larceny in the first degree. Motions by the defendant in arrest of judgment and for a new trial were denied, and the defendant was sentenced to imprisonment for the term of seven years.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

William B. Hoyt, for appellant.

Frank A. Abbott, for the People.

KRUSE, J. The moneys which the defendant was convicted of stealing were obtained from the county treasurer, the legal custodian thereof, by means of a warrant signed by the clerk of the board of supervisors, and countersigned by the chairman of the board and the defendant Neff, the county auditor, payable to the order of the defendant Conover. The warrant was in due form, and signed and countersigned by the proper officers.

It is contended on the part of the prosecution that Conover had no right to the moneys so obtained on the warrant, which fact was well known to both Neff and Conover; that the warrant was a mere device by which to defraud the county of its money and appropriate the same to the use of themselves and others associated with them in the commission of the crime. On behalf of the defendant it is contended that he acted in good faith in countersigning the warrant, believing that Conover was legally entitled to the moneys which were obtained thereon, and that in fact the county was at that time indebted to Conover in a sum exceeding that amount, upon a contract which Conover had with the county for the removal of bodies from an old cemetery, situate in the city of Buffalo, to a new cemetery, owned by a corporation of which Conover was an officer. On the 26th day of March, 1901, Conover entered into this contract with the board of supervisors of Erie county. The contract was made under the provisions of chapter 277, p. 614, of the Laws of 1900, which was passed to enable the acquisition of the old cemetery lands by condemnation for an armory site. The act empowered the board of supervisors, with the approval of the armory commission of the state, to take proceedings to acquire the lands for that purpose. The Supreme Court was empowered to appoint three commissioners to appraise the damages for taking the lands and the damages accruing to the owners of lots by reason of the removal of the remains, requiring the damages for taking the lands to be considered and reported apart from the damages for the removal and reinterment of the remains and resetting the slabs, stones, and monuments. The board of supervisors was directed to publish a notice for 3 weeks, as therein prescribed, requiring the owners of lots within 30 days to remove the remains of persons buried therein. At the expira

tion of that time the board of supervisors was directed to cause the removal and reinterment of all such bodies then remaining in the cemetery lands, and the removal and resetting of the slabs, stones, and monuments; the expense thereof to be paid, as far as possible, from sums awarded to the owners of lots from which the removal is made. To carry out the provisions of the act the board of supervisors was empowered to issue bonds from time to time, to be sold by the treasurer of the county; the proceeds to be paid out upon the order of the board. On March 20, 1901, the board of supervisors adopted the following resolution:

"Resolved, that upon the expiration of the period of thirty days allowed for the removal and reinterment of the bodies in the cemetery in the city of Buffalo, described as follows: [Describing the cemetery]-that the board of supervisors cause the removal and reinterment of all of the bodies remaining in said cemetery lands at the expiration of such period of thirty days, and cause the same to be reinterred under the supervision of and subject to the orders of the board of health of the city of Buffalo, and cause the monuments. stones, and slabs remaining therein to be removed and reset; all to be removed and reinterred and reset in the Lakeside Cemetery, in the town of Hamburg. in the county of Erie: provided, said Lakeside Cemetery shall execute to the county of Erie a conveyance of sufficient lands in its cemetery for the removal thereto and reinterment therein of the said bodies, and the removal thereto and resting therein of said slabs, stones, and monuments; and provided, further, that R. J. Conover, comptroller of the said Lakeside Cemetery Association, shall execute to and with the county of Erie an agreement to convey said lands, and to remove and reinter said bodies, and to remove and reset said slabs, stones, and monuments at his own expense and in such manner as to preserve the identity of said body as far as possible, and, in all cases where the remains of any body are distinguishable, to reinter the same in a separate grave; the county to pay to the said R. J. Conover, comptroller of the Lakeside Cemetery Association, in consideration thereof. the amount of the awards allowed by the commission heretofore appointed as the damages for taking the lands and removing the said bodies from the so-called North Street Cemetery, for the bodies so removed and reinterred. and for the slabs, stones, and monuments so removed and reset."

On the 26th day of March, 1901, a contract was entered into by Conover with the county. After reciting in full the resolution just referred to, it provided that Conover should remove and reinter the bodies remaining in the cemetery, remove and reset all slabs, stones, and monuments in the Lakeside Cemetery at his own expense, and in such manner as to preserve the identity of each body as far as possible, and, in all cases where remains of any body are distinguishable, to reinter the same in a separate grave. He further agreed that the Lakeside Cemetery Association would execute to the county a conveyance of sufficient lands in its cemetery for the removal thereto and the reinterment therein of the bodies upon completion of said work. Upon its part the county agreed as follows:

"The party of the second part, in consideration thereof, agrees to pay to the party of the first part the amount of the awards allowed by the appraisal commission in its report heretofore confirmed by the Supreme Court of Erie county as to the damages for taking the lands and removing the said bodies from the North Street Cemetery, for the bodies so removed and reinterred, and for the slabs, stones, and monuments so removed and reset."

Defendant's counsel asked the court to charge that, under the contract, Conover was entitled to land awards made by the commissioners

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for all the lots from which Conover removed bodies. The court declined, and charged the jury as a matter of law that under his contract Conover was not entitled to the land awards. Counsel for the defendant excepted to the refusal to charge as requested, and to the charge as made, and urges that such a construction not only does violence to the language of the contract itself, but that the interpretation contended for by the defendant is the more reasonable one, since Conover was required not only to remove the remains and reinter them, and remove and reset the slabs, stones, and monuments, but also to furnish the land for that purpose; that, even assuming that the trial judge was right in holding that the lot owners had such an interest in their lots as entitled them to compensation beyond the furnishing of another burial place, and that as between the county and the lot owners the awards for land damages belong to the owner, yet that it was entirely competent for the county to contract, and it did contract, to pay to Conover a sum equal to the total amount awarded to the lot owners, including the damages for taking the lands from which Conover removed the unclaimed dead. There is much force in this contention, and I confess that my first impression upon the argument was that such was the interpretation to be placed upon the provision of the contract relating to the compensation to be made to Conover. But upon a careful reading of this provision, in connection with the act under which the old cemetery was acquired, the report of the appraisal commission, and the surrounding circumstances, I think the trial judge was right in his interpretation of the contract. The contract itself was made in reference to the provisions of the act, as the act is referred to therein.

After the awards had been made, and the commissioners' report filed and confirmed, and simultaneous with the passing of the resolution authorizing the making of the contract with Conover, the board of supervisors directed an issue of bonds, of $210,000, which was the amount necessary to pay the awards fixed by the court in confirming the report of the commissioners and the expenses incurred up to that time. The commissioners, in their report, had made awards for removing and reinterring the bodies, and removing and resetting the slabs, stones, and monuments, fixing the uniform sum of $9 for removing a body and $6 for reinterring the same. The amount for removing the slabs, stones, and monuments, and resetting the same, varied. They had also made separate awards, as the act provided, for the damages for taking the land and for removing and reinterring the remains. The act provided that the bonds were to be sold by the county treasurer, and the proceeds retained by him and paid out upon the orders of the board. Section 6 of the act (Laws 1900, p. 616, c. 277, § 6) provides:

Within sixty days after the confirmation of the report of the commissioners, the board of supervisors shall make to the persons to whom compensation shall have been awarded by the commissioners, the compensation awarded to them respectively, except as hereinafter otherwise provided. In case any such person shall refuse such compensation, or shall be unknown or incapacitated, or the right to the compensation be disputed or doubtful, the board of supervisors may pay the same into court with a statement of the facts and circumstances of the case."

Section 7 provides:

"Upon paying either to the persons entitled thereto or into court the amounts separately awarded as damages for taking said lands, the title thereto shall vest in the people of the state of New York in fee. After the making of such payment the board of supervisors shall publish a notice twice a week for three weeks in the official paper and two other daily papers of said county requiring the former owners of lots in said cemetery to remove the remains of persons buried in such lots and to remove the monuments, slabs and stones on said lots, and suitably reinter such remains and reset such monuments, slabs and stones within thirty days from the first publication of such notice; such removal, reinterment and resetting shall in all cases be done under the supervision and subject to the orders of the board of health of the city of Buffalo, and when in any case the health commissioner of said city shall certify that the same has been properly accomplished the board of supervisors shall direct the payment or deposit in court of the further sum awarded in such case for that purpose."

Then follows section 8, which provides that the board of supervisors shall cause the removal and reinterment of the bodies remaining after the expiration of the time during which former lot owners are required to make the removal, and that the expense of such removal, reinterment, and, resetting shall be paid by the board, as far as possible, from the sums awarded to the owners of lots from which the removal is made, and empowers the board to acquire sufficient land for that purpose in one of the existing cemeteries in the county.

It will thus be seen that the act contemplates, before any removals are made, that the awards for the land damages shall be paid to the persons entitled thereto, or into court, and the only moneys remaining under the control of the board of supervisors, realized from the proIceeds of the sale of bonds, are the awards for the removal and reinterment of the bodies and for the removal and resetting of the monuments. Those awards are to be paid to the lot owners, where they do that work. Where it is not done by the lot owner, the board of supervisors is to use the amount of the award in meeting the expenses of causing the work to be done. It would seem, therefore, that those are the awards referred to in the contract, that the words "as to the damages for taking the lands and removing the said bodies from the North Street Cemetery," contained in the contract, are mere words of description of the report containing the awards, and that the amount of the awards to which the defendant Conover is entitled is the awards allowed "for the bodies so removed and reinterred, and for the slabs, stones and monuments so removed and reset."

It is true, as urged by counsel for the defendant, that although the awards for land damages may belong to the landowners, yet that the board of supervisors could contract to pay a sum equal to the awards, including the land damages. The difficulty with that suggestion is that the contract does not so provide, and we think it is not susceptible to that construction, as we have pointed out.

2. The trial court charged the jury that if the defendant honestly believed that under the contract Conover was entitled to the land awards made by the commissioners for lots from which he removed the bodies, and the payments made by the defendant were intended to apply in part upon land awards to which he believed Conover entitled, he (the defendant Neff) could not be convicted, but declined to charge

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that the evidence showed that fact, leaving that question to be determined by the jury upon the evidence, and giving the defendant an exception to the refusal to charge as requested. The jury found against the defendant, and we think the evidence sustains that finding.

The act for acquiring the old cemetery became a law on the 4th day of April, 1900. The resolution of the board of supervisors to acquire the lands was adopted on or about April 24, 1900. On May 18, 1900, the order was made appointing the commission of appraisal. Soon after the act became a law, and before the appointment of any commissioners, Neff called the attention of Conover to the law, and thereafter, and a day or two before the commissioners were appointed. Neff, with either Gibson or Jackson, went to Conover's office and talked about the men who were mentioned as commissioners. Neff, Gibson, and Jackson were there several times during the year after that. Upon one occasion, some two or three months after the commission had been appointed, in September or October, Neff, Gibson, and Jackson came to Conover's office and discussed the possibility of removing the bodies to the cemetery owned by the association with which Conover was connected; one of the three saying that it could be done, but would cost money. Conover testifies that he replied that his funds were tied up in the Lakeside Cemetery, and that he had none to spend for that purpose. Soon after, and after the first report of the commissioners (which is dated November 7, 1900), Neff, Gibson, and Jackson went to Conover's office again, and a computation was made from the awards made by the commission. The sum awarded to the cemetery association, and to the city for taxes and some expenses, was deducted from the total awards, and the balance divided by the number of bodies estimated, making the average of $24.42 per body. It was agreed among them that Conover was to have $18 per body, and the other three $6.42 per body.

On November 2, 1900, and after the talk with Neff, Gibson, and Jackson that it would take money to get the contract, Gibson and Jackson went to Conover's office, and it was then mentioned that $5,000 would be necessary to be raised for the use of the board of supervisors, and Conover made his note for that amount, payable to the order of Jackson, due in eight months, with interest, assigning as collateral security a certificate of indebtedness of the Lakeside Cemetery Association for $5,000, of which Conover was the holder. Thereafter Neff interested Stock, who was a member of the military committee of the board of supervisors, in the matter. He called Stock into his private office and stated that there was a contract to be let to Conover; that Conover would receiver $15 a body, retaining $9 for himself, and giving to Neff, Gibson, Jackson, and Stock $6; that he (Neff) figured out the amount of money on the basis of about 4,000 bodies at $6 per body. The amount of some of the warrants thereafter issued to Conover seems to be at that rate, $15 a body, as will appear later. Stock testifies to various meetings, had thereafter between himself, Neff, Gibson, and Jackson, where money was divided among them, and admits that he received $1,000. On March 15, 1901, Conover made four assignments in blank of certain amounts out of warrants to be issued to him. The assignments were all acknowledged as having