
    The People of the State of New York, Respondent, v. Samuel J. Weiss and David Goldberg, Appellants.
    First Department,
    January 20, 1939.
    
      
      Terence J. McManus of counsel [Hugo I. Epstein, Joseph Siegel and Solomon E. Star with him on the brief; McManus, Ernst & Ernst and Joseph Siegel, attorneys], for the appellants.
    
      Victor J. Herwitz, Deputy Assistant District Attorney, of counsel [Ezekiel G. Stoddard and Arnold Bauman, Deputy Assistant District Attorneys, with him on the brief; Thomas E. Dewey, District Attorney], for the respondent.
   Per Curiam.

The evidence conclusively established that the defendant Weiss, with intent to evade payment of his income tax, made a false income tax return. The judgment of conviction against Weiss should be affirmed. (National City Bank of N. Y. v. Helvering, 98 F. [2d] 93.)

The record also established participation by the defendant Goldberg in the falsification of the corporate books and in the withdrawal of money from the corporation. The proof, however, failed to show participation by Goldberg in the preparation of the ultimate income tax returns filed by Weiss or Friedman. Eli M. Friedman was named as a codefendant, but the trial was severed as to him. It was also not proved beyond a reasonable doubt that Goldberg contemplated the filing of the fraudulent returns at the time the money was secretly withdrawn from the corporation. The judgment of conviction against Goldberg should be reversed, the information as to said defendant dismissed, and said defendant discharged from custody.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Judgment unanimously affirmed as to defendant Samuel J. Weiss. Judgment unanimously reversed as to defendant David Goldberg, the information as to said defendant dismissed, and said defendant discharged from custody.  