App. Div.] Third Department, July, 1913. of E. F. Hutton & Co." and this is exactly the arrangement which the plaintiff made with Bliven; the stock was to be transferred as a loan. No title was to pass; it was to stand in the name of E. F. Hutton & Co., to be used by them as collateral, for a consideration of two per cent per annum, but the ownership was to remain in the plaintiff, and if the defendants could have known all that Bliven knew, and if they had been interested in promoting his fraud, they could not have hit upon a more enticing cover for the fraud than is to be found in this exhibit which it is claimed was prepared by the defendants. If we accept the defendants' present contention, therefore, and assume that the plaintiff and her daughter did in fact sign these exhibits, the jury could not have come to any other intelligent conclusion under the testimony than that the defendants had by their conduct placed it in the power of Bliven to consummate this wrong, and that they could not have gained any title to this stock which the plaintiff never parted with. It does not seem within the range of reasonable probabilities that the defendants drew this exhibit, which is so out of the ordinary in form, and which so admirably fits into the plans of Bliven. It is easy to understand how Bliven, knowing the result which he desired to accomplish, might have designed this paper either with the purpose of securing the signatures or for the purpose of forging them, but that the defendants should have hit upon the exact phraseology which would fit Bliven's crime and aid in deceiving the plaintiff and her daughter, and should have sent Bliven out to get these signatures, is almost unthinkable. If they had come to doubt Bliven's word about the ownership of this stock it was certainly very remarkable that they should have relied upon him to get the signatures without making inquiries, while if they believed in him and held him out to the plaintiff as worthy of the confidence which the nature of the errand implied they are not to be heard to say that the plaintiff was negligent in relying upon this same representative in the entire transaction. The presumption of innocence of wrong which belongs to the defendants forbids that we should suggest that they were parties to the frauds of Bliven, and reason forbids belief in the APP. DIV.-VOL. CLVIII. 9 Third Department, July, 1913. [Vol. 158. story that these exhibits were prepared by the defendants or that they knew anything about them until long after the stocks had been converted. Certainly if the defendants knew of these exhibits and they were the subject of consultation in 1906 they would not have been forgotten in December of that same year when the plaintiff demanded her securities, nor in all the litigation which followed for nearly four years, and the most likely thing is that the exhibits were forged by Bliven if they in fact had any existence at the time or in connection with the transaction. But in either view the verdict of the jury is supported by the evidence, and, if not contrary to law, should be affirmed. It is urged that there is a difference between the Central and Rubber stocks and those of the Columbus company in that the latter stood in "street names," indorsed in blank and were transferable by delivery under the usage of Wall street, but we are of the opinion that the plaintiff owning these stocks as administratrix and parting with them only upon the limited condition that they were to be held by the defendants to be sold for her benefit when they should reach a certain price, the latter could not get title to them because its own agent claimed to own them, unless the plaintiff had been guilty of negligence in dealing with Bliven in the manner which she did, and the defendants, under the evidence in the record now before us, are hardly in a position to say that they did not hold Bliven out as their representative in this and the previous transactions with the plaintiff. We think the rule of law is not different in the two instances, and that the rule laid down by the court is within the authorities. If the plaintiff was seeking to recover from Waterman, Anthony & Co., to whom the defendants transferred this stock, different questions would be presented, but here the defendants placed Bliven in a position to work this wrong, and the plaintiff not having neglected any proper precaution-for this must be the effect of the jury's determination whether the exhibits above referred to were forgeries or not— the defendants never had any right to convert the stock to their own use, and having done so, they must respond in damages to the plaintiff. By the larcenous taking of chattels the owner is not divested App. Div.] Third Department, July, 1913. of his property, and a transfer to a purchaser does not impair the right of the true owner. A purchaser of stolen goods, either from the thief or from any other person, although in the ordinary course of trade and in good faith, will not give title as against the owner. Larceny has been defined as "the felonious taking the property of another, without his consent and against his will, with intent to convert it to the use of the taker' (Hammon's Case, 2 Leach, 1089), or 'the wrongful or fraudulent taking and carrying away by any person of the personal goods of another, with the felonious intent to convert them to his (the taker's) own use and make them his own property without the consent of the owner.'" (Citing authorities.) "The fraudulent and wrongful taking being proved with the felonious intent, the animo furandi, the only question remaining in any case is whether the taking was with the consent of the owner; for if so, although the consent was obtained by gross fraud, there is no larceny. But the consent must be to part with the property, and not the naked possession for a special purpose. If the owner does not intend or consent to part with his property, then the taking and conversion of it with a felonious intent by one having possession of it, as the property of the owner and for a special purpose is larceny. If i appear that although there is a delivery by the owner in fact, yet there is no change of property nor of legal possession, but the legal possession still remains exclusively in the owner, larceny may be committed as if no such delivery had been made." (Bassett v. Spofford, 45 N. Y. 387, 391, and authorities there cited; Soltau v. Gerdau, 119 id. 380, 389, and authorities there cited.) There would seem to be no doubt that Bliven's possession of the plaintiff's stock was larcenous, and that he never had any legal title to the stock, and tha" the defendants could not get title through him. Having converted the stock they are now bound to respond in damages, the case of Soltau v. Gerdau being ample authority for this conclusion. We do not find legal error in the record, and the judgment and orders appealed from should be affirmed, with costs. All concurred; SMITH, P. J., and LYON, J., in result. Judgment and orders affirmed, with costs. Third Department, July, 1913. [Vol. 158. CHARLES E. VINSON, Respondent, v. THE SEWER, WATER AND STREET COMMISSION OF SARATOGA SPRINGS, N. Y., Appellant. Third Department, July 8, 1913. Municipal corporation - notice of claim for damages against village of Saratoga Springs - provisions of charter construed -- statutes — repeal - Village Law, section 341. A notice of a claim for damages against the village of Saratoga Springs should be filed under the provisions of the Laws of 1890, chapter 289, adding section 82 to the charter of said village. It is not necessary to file a claim with the village clerk within sixty days of the accident, as provided by section 341 of the Village Law. Chapter 506 of the Laws of 1902, amending the charter of said village, is not inconsistent with and did not repeal the provisions of section 82, with reference to the presentation of claims. APPEAL by the defendant, The Sewer, Water and Street Commission of Saratoga Springs, N. Y., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 17th day of March, 1913, sustaining plaintiff's demurrer to one of the special defenses set up in the answer. Frank Gick [Denis J. Harrington and John A. Slade of counsel], for the appellant. Edgar T. Brackett [Luther A. Wait and F. Andrew Hall of counsel], for the respondent. WOODWARD, J.: The complaint sets forth the facts necessary to the statement of a cause of action for damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant in digging a trench in one of the streets of the village of Saratoga Springs and leaving it unguarded, so that the plaintiff fell into the same, sustaining more or less serious injuries. The complaint alleged that a written verified statement of the nature of the claim and the time and place at which the injuries were received before the commencement of the action was duly filed with the clerk of the sewer, water and street commission of the village of Saratoga Springs on the 1st App. Div.] Third Department, July, 1913. day of March, 1912, and with the clerk of said village on the 22d of March, 1912, and within six months after the cause of action accrued, and that more than thirty days have elapsed since the said claim was filed with the said the sewer, water and street commission and the said village clerk. A copy of the notice is attached to the complaint and no question is raised as to its form or substance, but the defendant pleads as a defense to the "seventh' count or paragraph of the plaintiff's amended complaint" that a "copy of said written verified statement, as set forth in the 'seventh' count or paragraph of the plaintiff's amended complaint, was not filed with the Village Clerk, of the Village of Saratoga Springs, within sixty days after the alleged injuries were sustained, as required by Sec. 322 of the Village Law,† * nor with the clerk of the Sewer, Water and Street Commission within sixty days after the alleged injuries were sustained." Plaintiff demurred to this defense and the learned court at Special Term has sustained the demurrer, the defendant appealing from the judgment. The contention of the defendant upon this appeal is that the plaintiff should have filed his claim with the village clerk within sixty days of the accident, as provided by section 341 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64), instead of filing it under the provisions of section 82 of the charter of the village of Saratoga Springs (infra), and that is the only question to be disposed of upon this appeal. * * By chapter 289 of the Laws of 1890 the Legislature amended chapter 220 of the Laws of 1866, entitled "An Act to amend the charter of the village of Saratoga Springs, and the several acts amendatory thereof," and added thereto sections 79, 80, 81 and 82, and by the latter section it was provided that "No action shall be maintained against the village for damages for personal injuries or injuries to property alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employe thereof, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless the claim shall have been † Sic. See Gen. Laws, chap. 21 (Laws of 1897, chap. 414), § 322, as amd. by Laws of 1908, chap. 300, now Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64), § 341.-[REP. |