
    PEOPLE, Respondent, v. O’CONNOR, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    December 19, 1913.)
    Proceeding by the People of the State of New York against Cornelius J. O’Connor.
   PER CURIAM.

When the people rested, there was not a prima facie case against the defendant. Evidence was admitted that was clearly incompetent, and the motion to dismiss should have been granted. The defendant’s version of the occurrence was not substantiated by testimony which it seems he might have been able to produce. On consideration of the whole case, we think that justice requires a new trial, which is hereby ordered, pursuant to the provisions of section 527 of the Code of Criminal Procedure, and section 40, c. 659, Laws 1910. Judgment of conviction of the Court of Special Sessions reversed, and new trial ordered. See, also, 158 App. Div. 943, 143 N. Y. Supp. 1136.

BURR and RICH, JJ., vote for affirmance.  