App. Div. 675] First Department, July, 1921. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM KUPPERSCHMIDT, Appellant. First Department, July 8, 1921. Crimes - criminally receiving stolen property- thief not accomplice of person receiving stolen property where theft not induced by latter corroboration of testimony of thief not necessary. On a prosecution for criminally receiving stolen property, the thief who stole the property is not an accomplice of the defendant where the stealing of the goods was not induced or procured by the defendant, and hence the testimony of the thief against the defendant does not require corroboration. APPEAL by the defendant, William Kupperschmidt, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 16th day of April, 1920, convicting him of the crime of criminally receiving stolen property in the first degree in violation of section 1308 of the Penal Law. (See Laws of 1916, chap. 366, amdg. said § 1308. Since amd. by Laws of 1920, chap. 570.) George Z. Medalie of counsel [Kopp & Perlman, attorneys], for the appellant. Robert S. Johnstone, Assistant District Attorney, of counsel [Felix C. Benvenga with him on the brief; Edward Swann, District Attorney], for the respondent. SMITH, J.: The defendant was convicted in part upon the testimony of the thief who stole the goods, and the trial judge charged the jury that the thief was not an accomplice of the defendant and that, therefore, they might convict upon the testimony of the thief without further corroboration, warning the jury, however, that they should accept with caution the testimony of one who was before them confessing his guilt. This charge raises the only question for our consideration. It has been held in this State that a thief is not an accomplice of the receiver in the crime of receiving stolen goods. (People v. Cook, 5 Park. Cr. Rep. 351; People v. Ammon, 92 App. Div. First Department, July, 1921. [Vol. 197 205; affd., 179 N. Y. 540; People v. Levine, 140 App. Div. 910.) And there are obiter expressions to the same effect. (People v. Zimmer, 174 App. Div. 470; People v. Hyde, 156 id. 628.) In the Third and Fourth Departments, however, it has been held that the thief is an accomplice of the receiver of the stolen goods. (See People v. Willard, 159 App. Div. 19; People v. Markus, 168 id. 184; People v. Kudon, 173 id. 342; People v. Ansteth, 84 Misc. Rep. 356.) In other States we find authority divided. In Arizona, Colorado, Georgia, Indiana, Iowa, Minnesota, Missouri, New Jersey, Oklahoma, Oregon, Tennessee and Utah the law seems to be established that the thief is not an accomplice of the receiver of stolen goods so as to require corroboration of his testimony as against the receiver. The contrary rule seems to have been held in Arkansas, California, Illinois, Kansas, Pennsylvania and Texas. The cases in the Third and Fourth Departments holding that the thief is an accomplice of the receiver of stolen goods contain no discussion of the question but rather an assumption of the rule of law and the discussion is confined to the sufficiency of the corroboration. Upon an examination of the authorities and upon a consideration of the logical results of such a holding, I am led to the conviction that the authorities in the Third and Fourth Departments are not well founded, and that the thief is not an accomplice of the receiver of stolen goods, so that his testimony as against such receiver does not require corroboration within the requirements of the criminal law. It is difficult, if not impossible, to lay down any guiding principle which will apply to all cases in determining what is an accomplice within this provision of section 399 of the Code of Criminal Procedure. In this case, however, the conclusion is simplified by the nature of the crime. The thief may sell the goods to an innocent purchaser and the purchaser is guilty of no crime. If the sale be made to a party who has knowledge of the fact that the goods are stolen, the purchaser is guilty of a crime. To hold that the thief is an accomplice in the crime of criminally receiving if the purchaser has knowledge of the theft, and that no such crime is committed either by the purchaser or the thief in the sale of such goods if the thief does not know that App. Div. 675] First Department, July, 1921. the purchaser had knowledge of the theft, makes the criminality of the thief in such crime dependent solely upon his knowledge of the knowledge of the purchaser that the goods have been stolen. I know of no principle of the common law and of no statute which makes the test of criminality the knowledge of facts by a third party. If the thief is not guilty of a crime in making a sale to an innocent third party, he cannot be guilty of a crime in making the sale to a third party with notice of the fact that the goods were stolen. One act is morally as culpable as the other. Where the act is one that is made criminal solely by the knowledge of the receiver of the goods, I cannot see by any reasonable rule of law how the thief can become an accomplice in the crime which depends upon such knowledge. The judgment should be affirmed. DOWLING, J., concurs. PAGE, J.: I concur in the result of Mr. Justice SMITH's opinion. In my opinion the thief is not the accomplice of the receiver of the goods stolen, except where the stealing of the particular goods is induced or procured by the receiver, in which as the main purpose of the theft is to dispose of the particular goods to the receiver, and it is through his incitement and inducement that the theft is committed, they are both united in a common plan to steal goods for the purpose of disposing of them to the receiver; and, therefore, I am of opinion that not alone would the receiver be the accomplice of the thief in the larceny, but the thief would be the accomplice in the receiving. In the case under consideration the receiver merely advertised his business by telling the thief that if he had goods to dispose of he would take them from him. There was no inducement to the particular theft. The evidence tended to show the guilty knowledge of the receiver, and no corroboration was necessary of the thief's testimony. CLARKE, P. J., and GREENBAUM, J., concur. First Department, July, 1921. [Vol. 197 ANNIE BELLEVILLE HUNTER, Respondent, v. FREDERICK WILLIAM HUNTER, Defendant. Upon Motion of WILLIAM R. POWELL and SARAH E. HUNTER, as Executors, etc., of FREDERICK WILLIAM HUNTER, Deceased, as Substituted Defendants, Appellants, for an Order Modifying the Final Judgment Herein. First Department, July 8, 1921. Husband and wife divorce effect of death of husband pending motion to modify judgment to strike out alimony provisionsubstitution of executors of husband as defendants for purposes of motion-court has power to impose upon defeated party attorney and counsel fees and other expenses where order for reference entered by consent provided for payment thereof. The death of a defendant in divorce proceedings after the rendition of judgment makes inoperative the provision for the payment of alimony after that date, but does not otherwise destroy the force of the judgment. Accordingly, any question as to the liability to pay alimony after the remarriage of the wife may be passed on by the court after the death of the husband on a motion instituted prior thereto for the purpose of relieving him from the alimony provision in the decree of divorce. The executors of the husband having been substituted as defendants on their own motion they cannot be heard to contend that the court was without jurisdiction thereafter to revive or entertain the motion then pending for the amendment of the alimony provision in the judgment for divorce and, furthermore, the court properly exercised its powers in reviving the motion, substituting the executors and continuing the proceeding. The court had the power to impose upon the defeated party to the motion the expenses of the reference ordered to take testimony and to report and also the attorney and counsel fees of the wife, since the order for the reference was entered by consent and provided that the expenses including the fees for the referee be taxable against the party against whom the motion should be decided; the provisions of section 3251 of the Code of Civil Procedure limiting the court to ten dollars costs and necessary disbursements for printing and referee's fees was not controlling. The term expenses" in the order of reference was understood and intended by the justice and by the respective attorneys for the parties to include, among other things, the reasonable attorney and counsel fees incurred by the successful party in connection with the reference. Inasmuch as the court has found that the affidavit upon which the motion for a modification of the judgment for divorce was based, which was to the effect that the plaintiff in the divorce action had remarried, was 66 App. Div. 678] First Department, July, 1921. wholly false, and that the husband induced and permitted the affiant to repeat under oath before the referee the false statements contained in the affidavit, it is proper that the entire expense that the plaintiff incurred to meet and overcome the perjury suborned by the husband should be repaid by him or his executors. The effect of the order entered on the motion of the executors which provided for their substitution and the continuance of the motion and that it should be without prejudice to any of the proceedings already had upon said motion or in the action, and that all proceedings that might thereafter be had should be binding upon the plaintiff and upon the executors, was to require the personal representatives of the defendant to make pecuniary reparation out of the husband's estate for the expenses actually incurred by reason of his wrongful act. APPEAL by William R. Powell and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1920, denying a motion to modify so much of a judgment of divorce as awarded alimony to the plaintiff. Carlisle Norwood of counsel [Thomas L. Walsh with him on the brief], for the appellants. Henry L. Sherman of counsel [George H. Engelhard with him on the brief; Engelhard, Pollak, Pitcher & Stern, attorneys], for the respondent. PAGE, J.: On or about November 25, 1916, the plaintiff obtained a final judgment of divorce in her favor and against the original defendant, Frederick William Hunter, now deceased, in an action brought in the Supreme Court, New York county, which also adjudged that Frederick William Hunter pay to the plaintiff alimony in the sum of $5,200 per annum, to be computed from the date of entry of the judgment, to be paid in equal monthly installments during the natural life of the plaintiff. Hunter paid to plaintiff the alimony down to and including the installments which became due January 6, 1918. On or about February 23, 1918, Frederick William Hunter made a motion for an order modifying the final judgment by annulling the provision for alimony pursuant to section 1771 of the Code of Civil Procedure, upon the ground that the plaintiff had married one John Barrett Kerfoot at Perry, |