
    The People of the State of New York, Respondent, v. Carlo Barone and Dominick Grippo, Appellants.
    Argued June 10, 1942;
    decided July 29, 1942.
    
      Alfred A. Duffy, Louis E. Drago and Samuel Goldstein for Carlo Barone, appellant.
    
      Samuel Bader and Harry G. Anderson for' Dominick Grippo, appellant.
    It was impossible for the defendant Grippo to receive a fair trial as a result of Barone’s extraordinary conduct throughout the trial. The trial court committed reversible error in failing to safeguard the rights of the defendant Grippo in denying his motions for a severance or, in the alternative, for the declaration of a mistrial. (People v. Snyder, 246 N. Y. 491; People v. Feolo 282 N. Y. 276.)
    
      
      William O’Dwyer, District Attorney (Henry J. Walsh and Thomas Cradock Hughes of counsel) for respondent.
    Grippo was not entitled to a severance of the trial. (People v. Fisher, 249 N. Y. 419; People v. Feolo, 282 N. Y. 276.)
   Per Curiam.

In spite of the attempt of the trial judge to protect the defendant Grippo, the behaviour of the co-defendant Barone at the trial made a fair consideration of the evidence against Grippo by the jury impossible.

As to the defendant Barone, the judgment of conviction should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

As to the defendant Grippo, the judgment of conviction should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Rippey and Desmond, JJ., concur; Finch, Lewis and Conway, JJ., dissent.

Judgments accordingly.  