§ 166. False auditing and paying claims.-A person who, being or acting as a public officer or otherwise, by willfully auditing or paying, or consenting to or conniving at, the auditing or payment of a false or fraudulent claim or demand, or, by any other means, wrongfully obtains, receives, converts, disposes of or pays out, or aids or abets another in obtaining, receiving, converting, disposing of or paying out, any money or property held, owned or in the possession of the state, or of any city, county or village, or other public corporation, or any board, department, agency, trustee, agent or officer thereof, is guilty of a felony, punishable by imprisonment for not less than three nor more than five years, or by a fine not exceeding five times the amount or value of the money or the property converted, paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprisonment and fine. The amount of any such fine, when paid or collected, shall be paid to the treasury of the corporation or body injured. A conviction under this section forfeits any office held by the offender, and renders him incapable thereafter of holding any office or place of trust.

See sections 672, post.

§ 167. False auditing and paying claims.-A transfer in whole or in part of any deposit with any bank or other depositary, or of any credit, claim or demand upon such depositary, whereby the right, title or possession of the owner or holder of such deposit, or of any custodian thereof, is impaired cr affected, is a conversion thereof under the last section.

$ 168. Conspiracy defined.-If two or more persons conspire, either

1. To commit a crime; or

2. Falsely and maliciously to indite another for a crime, or to procure another to be complained of or arrested for a crime;

or

3. Falsely to institute or maintain an action or special proceeding; or

4. To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property by false pretenses; or

5. To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements or property, belonging to or used by another, or with the use or employment thereof; or

6. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws;

Each of them is guilty of a misdemeanor.

See sections 170, 653 and 673, post.

See note on Strikes and Boycotts in 4 N. Y. Cr., 361.
See note on Strikes, Boycott, etc., 24 Abb. N. C., 260.

Re-enactment.-The provision of subd. 6, section 8, of 2 R. S., 692, is contained in subd. 6 of this section of the Code. Leonard v. Poole, 114 N. Y., 377; 23 St. Rep., 753.

The word "cheat," as used in subd. 4 of this section, retains the meaning it possessed at common law. People v. Olson, 39 St. Rep., 297; 15 N. Y. Supp., 778, 9.

Appointment to office.-An agreement between two parties that, in consideration of one of them securing the other's appointment to a public office, the latter would place his resignation in the former's hands, when requested; make no appointment of subordinates in the office without his approval; make such removals therein as he might suggest and request; and transact the business of the office as he might direct, amounts to a conspiracy for the perversion or obstruction of justice, and of the due administration of the laws. People v. Squire, 20 Abb. N. C., 369; 6 N. Y., Cr., 264; 1 St. Rep., 535.

What necessary.-To constitute guilt, there must be both a wrongful act and a criminal intent. People v. Flack, 125 N. Y., 334; 34 St. Rep., 728, 8 N. Y. Cr., 88.

The criminal intent is a question for the jury. Id.

To make an agreement between two or more persons to do an act, innocent in itself, a criminal conspiracy, it is not enough that it appears that the act, which was the object of the agreement, was prohibited. People v. Powell, 63 N. Y., 88; People v. Flack, 125 id., 333; 34 St. Rep., 726; 8 N. Y. Cr., 88.

The mere fact that the conspiracy has for its object the doing of an act which may be unlawful, followed by the doing of such act, does not constitute the crime of conspiracy, unless the jury find that the parties were actuated by a criminal intent. Id.

The actual criminal or wrongful purpose must accompany the agreement, and if that is absent, the crime of conspiracy has not been committed. Id.

It does not constitute a conspiracy under our statutes for persons to combine together to commit a trespass upon or to destroy another's property. People v. Everest, 51 Hun, 25; 20 St. Rep., 461; 3 N. Y. Supp., 614, 7.

The unlawful agreement constitutes the gist of the offense. Id.

An agreement between a labor organization and an association of manufacturers that no manufacturer belonging to an association shall employ any person who is not a member of the labor organization, or to retain for a longer time than four weeks any employee who refuses to join the labor organization, is a conspiracy. Curran v. Galen, 22 N. Y. Supp., 826.

Id.

Not criminal.-Subdivisions 5 and 6 of this section are limited by section 170, post. People ex rel. Gill v. Smith, 5 N. Y. Cr., 512; 10 St. Rep., 730. But such limitation only goes to the extent of legalizing the peaceable and orderly strike when resorted to in good faith for the authorized purposes. Peaceable withdrawal from employment, commonly called a strike, however extensive, for the purpose of obtaining an advance of the rate of wages, or maintaining such rate, is not an offense against the provisions of this section.

Id.

All meetings and combinations of workmen, which seek, by all peacea! le

means, an increase of wages, and are not distinguished by violence or threats, are lawful. People ex rel. Gill v. Walsh, 6 N. Y. Cr., 292; 15 St. Rep., 17.

But a combination to drive out, and prevent from working in a certain district, an objectionable person, is a criminal conspiracy. Id.

Boycott.-Boycotting is a misdemeanor, both at common law and under this section. Old Dominion S. S. Co. v. McKenna, 18 Abb., N. S., 281.

It is a criminal offense for two or more persons corruptly and maliciously to confederate together to deprive another of his liberty or property; or to injure other workmen by adopting means to deprive them of their employment. State v. Glidden, 6 N. Y. Cr., 321.

The fact that the conspiracy has a lawful end in view, is no legal excuse for the employment of criminal means.

Id.

Where a number of men combine together to injure, and thereby to prevent the exercise of a lawful calling, by congregating near the doors of the person to be injured, by printing circulars descriptive of the supposed grievances, and by distributing the same near and about his doors to the customers and passers-by, and the effect of such overt acts is to intimidate and thereby warn off his customers and the general public who might otherwise patronize him, and to intimidate such person himself, those who conspire and participate in the overt acts, are guilty of the crime of conspiracy under subdivision 5 of this section. People v. Kostka, 4 N. Y. Cr., 429. See People v. Wilzig, 4 N. Y. Cr., 403.

Every attempt by force, threat or intimidation to deter or control an employer in the determination of whom he will employ or what wages he will pay, is an act of wrong and oppression. Crump v. Commonwealth, 4 N. Y. Cr., 342. Every combination for such a purpose is an unlawful conspiracy. Id.

Individuals who, by unlawful combinations, seek to interfere with the trade, business or occupation of others, with a view of injuring or embarrassing them in the prosecution of such trade or business are subject to the penalties of the criminal law. Thomas v. Musical M. P. Union, 121 N. Y., 50; 30 St. Rep., 564.

To constitute intimidation, it is not necessary that there should be any overt act of violence, or any direct threat by word of mouth. People v. Wilzig, 4 N. Y. Cr., 403. It is enough if the attitude of those engaged in the overt act is intimidating. Id. This may be shown by their numbers, methods, placard, circulars and devices. Id. What constitutes intimidation within the meaning of the law. Id.

The unlawful purpose may be also evidenced by force, threats or intimidation to prevent another from exercising a lawful trade or calling. People ex rel. Gill v. Smith, 5 N. Y. Cr., 512; 10 St. Rep., 730.

Combination. A combination to control prices is illegal. People v. Sheldon, 50 St. Rep., 231.

An association of manufacturers of wire cloth formed for the avowed purpose of regulating the price of the commodity, each of the members stipulating, under a heavy penalty, that he will not sell at less than a specified rate, was held in Dewitt Wire Cloth Co. v. New Jersey Wire Cloth Co., 14 N. Y. Supp., 277, to be contrary to public policy and illegal.

An agreement, association. combination or arrangement, or whatever else it may be called, having for its objects the removal of competition and the advancement of prices of the necessaries of life, violates subdivision 6 of this section. People v. North R. S. R. Co.. 54 Hun, 380; 27 St. Rep., 284; 7 N. Y. Supp., 411.

A consolidation of manufacturing corporations, save in the manner and as provided by statute, and whether made directly, or indirectly through the medium of a trust, is uulawful and injurious to the public interests. People v. North R. S. R. Co., 121 N. Y., 582; 31 St. Rep., 781.

If two or more persons conspire to commit any act injurious to trade or commerce, each of them is guilty of a misdemeanor. Leonard v. Poole, 114 N. Y., 377; 23 St. Rep., 753.

See People v. Snaith, 57 Hun, 334; 32 St. Rep., 569; 10 N. Y. Supp., 590;

People v. Sheldon, 21 id., 859; 50 St. Rep., 231; People v Crotty, 30 St. Rep., 46; 9 N. Y. Supp., 938; People v. Lenhardt, 4 N. Y. Cr., 326.

See chapter 716 of 1893, preventing monopolies in articles of general necessity.

$169. Conspiracies against peace, etc -If two or more. persons, being out of this state, conspire to commit any act against the peace of this state, the commission or attempted commission of which, within this state, would be treason against the state, they are punishable by imprisonment in a state prison not exceeding ten years.

§ 170. No other conspiracies punishable.-No conspiracy is punishable criminally unless it is one of those enumerated in the last two sections, and the orderly and peaceable assembling or cooperations of persons employed in any calling, trade, or handicraft, for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate, is not a conspiracy.

Amended by chap. 384 of 1882.

This amendment was made before Code went into effect.

See section 168, ante; sections 673 and 675, post.

The case of People v. Barondess, 61 Hun, 577; 8 N. Y. Cr., 234; 41 St. Rep., 659; 16 N. Y. Supp., 439, was reversed in 8 N. Y. Cr,, 376; 45 St. Rep., 248.

This section embodies subd. 6, section 8. chap. 1, title 6, part 4 of Revised Statutes. See chap. 19 of 1870.

Section 168, ante, and this section are entirely harmonious. People ex rel. Gill v. Smith, 5 N. Y. Cr., 512; 10 St. Rep. 730.

Object. This section is a weapon in aid, not of compulsory organization, but of voluntary co-operation. Id.

Limitation.-This section does not authorize a combination of individuals to compel, by means condemned in section 168, ante, all workingmen to join the co-operative forces, or to punish those who are supposed to be inimical thereto. Id.

What is permitted by this section cannot be a conspiracy to commit an act injurious to trade or commerce, nor to prevent another from exercising a lawful trade or calling by force, threats and intimidation. Id. But what is not permitted by this section may constitute a conspiracy and be punishable under subds. 5 and 6 of section 168, ante.

See Reynolds v. Everett, 67 Hun, 304; 50 St. Rep. 896; 22 N. Y. Supp., 313; Rogers v. Evarts, 17 Id., 267; Master Stevedore Ass'n v. Walsh, 2 Daly, 1.

§ 171. Overt act, when necessary.-No agreement except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.

See section 720, post.

Overt act necessary. To constitute the crime of conspiracy, there must be both an agreement and an overt act to effect the object of the agreement, except where the conspiracy is to commit certain felonies specified. People v. Flack, 125 N. Y., 333; 34 St. Rep., 727; 8 N. Y. Cr., 88.

The entering into the confederation merely, save in the excepted cases, is not an indictable offense, unless some overt act, besides such agreement, is done to effect the object thereof. People v. Everest, 51 Hun, 29; 20 St. Rep., 465; 3 N. Y. Supp., 617.