
    The People of the State of New York, Respondent, v. Sidney Rudish, Appellant.
    Reargued June 12, 1945;
    decided July 19, 1945.
    
      
      John J. Fitzgerald for appellant.
    As Malinski must be retried, Rudish should also be given a new trial. (Code Crim. Proc., § 528; People v. Munroe, 190 N. Y. 435; People v. Weiss, 290 N. Y. 160; People v. Ligouri, 284 N. Y. 309; People v. Peller, 291 N. Y. 438.)
    
      William O’Dwyer, District Attorney (Henry J. Walsh and Thomas Cradock Hughes of counsel), for respondent.
    Upon the facts and under the law a new trial is not called for. (People v. Feolo, 282 N. Y. 276; People v. Clougher, 246 N. Y. 106; People v. Malinski, 292 N. Y. 360; Ashcraft v. Tennessee, 322 U. S. 143.)
   Per Curiam.

Upon this reargument we assume that the evidence against Eudish was sufficient and that as to him no error of law was committed upon the trial. Nevertheless, since the Supreme Court of the United States directed a new trial as to Malinski because one of his confessions was inadmissible, the defendant Eudish should, in the interest of justice, receive a new trial with that confession excluded.

The judgment of conviction should be reversed and a new trial ordered-

Lehman, Ch. J., Loughran, Desmond, Thacher and Dye, JJ., concur; Lewis and Conway, JJ., dissent on the ground that the decision on this reargument should await the retrial of People v. Malinski.

Judgment of conviction reversed, etc.  