
    The People of the State of New York, Respondent, v. Max L. Kane, Appellant.
   Order of the County Court of Kings county denying defendant’s motion for a new trial on the ground of newly-discovered evidence reversed on the law and the facts, verdict set aside, judgment vacated and a new trial ordered. The conviction herein rests almost entirely upon the testimony of Solomon Schweitzer. That testimony is of a somewhat unstable character and not free from elements of contradiction. His credibility, therefore, was of prime importance. The newly-discovered evidence bears upon his credibility, and a jury passing upon the charge made against this defendant should have the benefit of that newly-discovered evidence in order that it may be better able to pass upon the credibility of Solomon Schweitzer. Accordingly, the discovery of this new evidence and the interests of justice require that the motion be granted and a new trial be had. In view of this decision the appeal from the judgment of conviction is dismissed as unnecessary. Lazansky, P. J., Hagarty, Carswell, Seudder and Davis, JJ., concur.  