The defendant did not injure or defraud any person by misrepresenting the quantity of coal delivered, and was not guilty of the crime charged, although he may have been proven guilty of an attempt to commit such crime and might have been found guilty of such an attempt.

The judgment of the Appellate Division and that of the Court of Special Sessions should be reversed and a new trial ordered.

Cardozo, Ch. 'J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.