p. 824The People of the State of New York, Respondent, v. Abram Finklestein, Appellant.
Judgment of conviction reversed and the indictment dismissed, on the ground that the court should have granted the motion to dismiss the indictment for failure of proof. It does not appear that it is necessary or proper to grant a new trial. Van Kirk, P. J., Hinman, Hiil and Hasbrouck, JJ., concur; Davis, J., dissents, and votes for a new trial, with a memorandum.
(dissenting). The verdict may be against the evidence; but a question of fact was made as to false testimony on the trial of the civil action in city court, and I believe that the indictment for perjury should not be dismissed.