was legal and competent proof of an arrangement between Bork and Lyon, by which the act of Bork done three years and seven months after, in the absence of Lyon and without his knowledge, became the act of Lyon and made him criminal. The jury were thus permitted to base one presumption upon another, which by repeated decisions in this state, it has been held they could not legally do, as was said by the court, in People v. Kennedy, 32 N. Y. 141, 145. Lyon certainly could not be charged with the effect of Bork's act until he had notice of it, and then the money had been used. It cannot be possible that he was morally or legally bound to raise the money or take his own money and go to the treasury and replace it at the risk of becoming criminal if he did not. The admission of this evidence and its use in this action was in direct violation of the principles laid down in the authority above cited. Any illegal evidence that would have a tendency to excite the passions, arouse the prejudice, awaken the sympathies or warp or influence the judgment of the jury in the least degree cannot be considered harmless. Anderson v. R. W. & O. R. R. Co., 54 N. Y. 334; O'Hagan v. Dillon, 76 N. Y. 171; Coleman v. People, 58 N. Y. 561.

II. The court erred in permitting the district attorney to prove Bork's conversation between him and the defendant Lyon about February 25, 1872. The conversation related to the moneys taken over to Lyon & Co.'s during the first four or five days of Bork's first term of office, mentioned in the last point,three years and seven months before the alleged commission of the act by Lyon for which he was on trial. This conversation was before the passage of the act under which Lyon was indicted; before Bork became treasurer, as charged in the indictment, and referred to a transaction entirely innocent in itself. Yet it is permitted by the court not only to characterize the act committed September 14, 1875, but to show that there was a combination between Bork and Lyon to rob the treasury. Lyon is not charged in the indictment with a combination or conspiracy with Bork to rob the treasury, but with one single act of receiving $2,200 on September 14, 1875; and the second count in the indictment charges that he obtained and received it without the consent of the officers, etc., of the city of Buffalo,

and yet this evidence is received and from it the jury are permitted to find that the indictment is not true, but that there was a combination entered into which was carried out.

III. The court erred in permitting the witness Bork to testify to a conversation with the defendant about June, 1872. This evidence was clearly inadmissible and incompetent for the following reasons: (A.) It was too remote, being more than three years prior to the time Lyon is charged in the indictment to have committed the offense of receiving $2,200 with intent to defraud the city. (B.) It was nearly three years before the passage of the statute under which the defendant was indicted. (C.) It was more than two years before Bork became treasurer, as charged in the indictment, and when, so far as the indictment alleges, he was simply an individual having nothing whatever to do with the city's moneys. (D.) It appeared that this conversation was with reference to moneys which the treasurer never had in his possession, custody or control as treasurer, and moneys which never had been and which never became the city's. How, then, could this evidence be competent upon question of Lyon's obtaining from the treasurer of the city of Buffalo on September 14, 1875, $2,200 of its moneys with intent to defraud the city? The court stated the purposes for which this evidence was received, and in its charge to the jury told them they could consider this conversation as evidence not only of guilty knowledge and intent, but as evidence of a combination or agreement between Bork and Lyon, so that Bork's act, performed in Lyon's absence and without his knowledge became Lyon's act and made him guilty.

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IV. The court erred in permitting the district attorney to prove by the witness Bork the transactions with reference to the marking off of taxes by the city treasurer or some one in his employ, and the giving of the check by Bork on the firm of Lyon & Co. in payment of such taxes. This evidence runs all through the case, commencing with the commencement of Bork's first term of office and running through each year, aggregating a great many thousand dollars, and consisting of a great many transactions. It was all taken under defendant's objection. Lyon, Baker & Co. were doing a real estate and insurance busiuess (Bork being a member of the firm) and

agents for paying taxes for owners of property, residents and non-residents. Some of these tax-payers had money on deposit with or in the hands of Lyon, Baker & Co., which they had collected for rents and received in various business transactions for such owners, and the firm of Lyon, Baker & Co. looked after their property and paid their taxes. The office where the tax rolls were first delivered to the treasurer would have a clerk make out the tax bills, get the amount of taxes of each party that the firm represented for which they were agents, then these bills were taken to the office and drafts made on the parties for the amount of their taxes, notifying them that by a certain day so much money was required to pay their tax of that year. Then they money was received by the firm of Lyon, Baker & Co. in answer to those drafts. When the money was received it went into the firm of Lyon, Baker & Co., and was there used by them. Then, the tax bills were taken to the treasurer's office, taxes marked paid, bills receipted and returned, and Lyon, Baker & Co.'s check given for the amount. These checks were always drawn by Bork or some one in his employ, and were retained in the treasurer's office. Lyon never drew one of them, never directed the drawing of one of them, was never present when one was drawn, and never had one of them in his hands, or saw one of them, so far as the evidence in this case proves. He was never in the treasurer's office during either of Bork's terms. The testimony of Bork shows this to be so in 1872, and his evidence is the same with reference to each of the years and each transaction. The item of $7,376.65, taken from the treasury during the first days of Bork's first term, by mistake, never went upon the books of Lyon & Co., or Lyon, Baker & Co. The moneys were never paid to Bork. When the remittances came in and the man's tax was made good, the bills would be taken over to the treasurer's office and the tax marked off. No money was brought. The clerks in the treasurer's office marked off the taxes, Bork or some one else drew a check in the treasurer's office to pay the taxes marked off. Bork usually gave the checks and took the tax receipts. When the men paid their taxes, they deposited the money with the firm, so that Bork, as treasurer, did not receive the money into his custody at all, and the firm of Lyon, Bork & Co.

charged these parties commission for doing the business. Now under this condition of things Bork was permitted to testify to the marking off these taxes and the amounts marked off, from the time he first went into office in February, 1872, down to the time the firm collapsed. He says: The amount thus marked off during the first portion of his first term was $36,800; and he also says, that during the year 1872, $66,000 or more, including the 36,800, were so marked off, and in relation to this item of $36,800, he says that no check was given. The district attorney was allowed to put in evidence the checks drawn by Bork on Lyon & Co., and left in the treasurer's office representing each one of these tax transactions; when any check was given, each one of which checks were objected to by the defendant, when all the evidence there was on the subject, proved, if it proved any thing, that Lyon never wrote them, or directed them to be written, and was never at the treasurer's office when they were written, and never saw them, or had any knowledge of their existence. The different items of these tax matters appear at almost every point in the case and run through the whole evidence. This evidence was all inadmissible and incompetent. These moneys were not the moneys of the city; some of them were collected by Lyon, Baker & Co. for their clients, and were in their hands as agents, to be used for the purpose of paying their clients taxes; and others were paid into their hands by their clients for the purpose of paying those clients' taxes, but they never were in the hands of the treasurer or any of the city's officers. By the giving of the check the moneys were but transferred to the treasurer or to the city. Suppose, taking one of these cases for an example, that after one of these checks had been drawn it had been presented for payment and payment refused, could the city have claimed these moneys as theirs? It would have a remedy by suit on the check to recover the amount for which it was drawn, but that suit could only be brought against the drawer; the drawee would not be liable until accepted. The check would not operate as an assigninent of the funds. Risley v. Phoenix Bank, 83 N. Y. 318. Again, suppose the city had disregarded this transaction of Bork entirely, and proceded to collect the taxes thus marked off, is

there any doubt but that it could have collected them? Would it then be held that the payment of the moneys by the taxpayers to their agents, and the giving of the check by Bork on the firm was payment as against the city? We say not. If it would, then the money, the moment it was paid into the agent's hands, became the city's moneys, and the principals could not have withdrawn it from their agents. Colvin v. Holbrook, 2 N. Y. 126; Hall v. Lauderdale, 46 N. Y. 70, 76. It may be claimed that this evidence was received only for the purpose showing the knowledge of Lyon with reference to the transactions and business of the firm of which he was a member, and therefore he must have known of Bork's criminal conduct in other matters; but this claim cannot be sustained, for the reason that the court stated that it was received as bearing upon the question of knowledge and intent.

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V. The court erred in permitting the district attorney to prove the sale of bonds belonging to the city by Bork and the use of the proceeds of these bonds by the firm of Lyon & Co. This evidence begins with the year 1873, and runs all through the case and includes many and large transactions making in part the $450,000 which Bork took from the public treasury during his several terms of office and converted to his own use or the use of the firm. These transactions were both before and after the time when Bork became treasurer as charged in the indictment; both before and after the passage of the act under which Lyon was indicted, and before and after the time it is alleged in the indictment that Lyon committed the offense of receiving the $2,200. This evidence was objected to. By the admission of this class of evidence the following rules of law were violated: First. That before evidence of guilty knowledge can be proved there must be proof of the commission of the act charged in the indictment, which was not done in this case. Second. That after proof has been given of the act charged in the indictment, proof must be made of the other acts by the defendant from which the jury may infer that the party had guilty knowledge or intent when he committed the act charged against him in the indictment. Third. That the jury cannot infer that the defendant has been guilty of one offense not charged against him, and from that inference draw