People v. Flechter

Patterson, J.: The defendant was tried in the Court of General Sessions of the-Peace on an indictment containing two counts : Firsl, for the lar — 201 — ceny of a violin ; second, for criminally receiving such violin knowing it to have been stolen. Near the close of a protracted trial, the record of which, consisting of some 650 printed pages, is now before us, the prosecution was required to elect upon which of the two-counts it would rely, and thereupon it determined to abandon the first and go to the jury upon the second. A verdict of guilty was rendered, and from the judgment entered thereon the defendant-appeals. The substantial inquiries relate to the sufficiency of competent evidence to support the particular count of the indictment on which the conviction was had, the fairness of the trial, the correctness of certain rulings of the recorder who presided at the trial, and of instructions to the jury. Cardinal matters in evidence were practically without contradiction. They may be summarized in a short narrative. Professor Bott, a musician, was the owner of a' Stradivarius violin of great-value. He had employed the defendant as his agent to sell it. Negotiations had been entered into between the defendant and Signor Nicolini for the purchase by the latter of the instrument for the-sum of $4,500, but the transaction fell through in consequence of Mr. Bott’s refusal to accept payment in a certain way. The defendant had seen and knew the instrument and its value. About a week after the negotiations with Nicolini failed the violin was stolen from the apartment of its owner. The defendant was informed of the theft, and undertook to aid Mr. Bott and his wife in efforts to recover it. Thus the defendant knew the article and that it was stolen. Some months subsequent to the larceny, and also to the death of Professor Bott, and also after the defendant had been informed that Mrs, Bott contemplated leaving the United States, the defendant offered for sale a violin, which he represented at one time to be, and ataño ther not to be, a genuine Stradivarius, but his final assertion was that it was genuine, and he offered it for sale as such. He was induced by a stratagem, arranged by persons who suspected him, to take the instrument for inspection to a house in Gramercy park, where Mrs. Bott was in waiting, and there, after a careful examination, she declared it to be her husband’s violin. The defendant, qn leaving the house, was arrested with the violin in his possession. It was retained by the police authorities until it was produced before — 202 — & committing magistrate on the investigation of a charge against éhe defendant. ■ After a hearing, the magistrate decided that the violin was not the one stolen from Mr. Bott, and directed that it be restored to the defendant, which was done. Immediately thereafter -the present indictment was found by the grand jury, and on the -trial the defendant exhibited a violin, hereafter, referred to • as Exhibit F 1, which he claimed, and' offered proof tending to show, -was the instrument produced before the magistrate, and he .further gave in evidence its alleged history to show that it was not Processor Butt’s violin. The prosecution admitted that it was not, but jit the same time insisted that it was not the one taken from the «defendant at the time of his arrest, and that it was not the one produced in the Police Court, and that the professor’s violin was the «one in the Magistrates’ Court and the one found on the person of-the «defendant when he was taken into custody upon leaving the house -jn Gframercy park. The issue before the jury, therefore, on the second count of the -indictment was as to the identity of a violin. If the defendant had -in his possession what he knew to be the Bott instrument, and knowing it to have been stolen, offered it for sale, he had the guilty intent «of depriving the true owner of his property, and the criminality of ■itlie possession becomes indisputable. A clear, independent line of -testimony, positive in character and conclusive if entitled to credit, ¡showed (some of it was not before the magistrate) that the violin in -the Police Court was Professor Bott’s, and there- were no less than -ten 'witnesses who testified that the instrument Exhibit F 1 was not -the one taken from the defendant when he was arrested, and was :not the one before the police magistrate. On the other hand, five ■persons called by the defense swore that Exhibit F 1 was the idqn-tical instrument produced before the magistrate. In considering •this conflicting testimony, the jurors were aided by evidence as to -the means of knowledge and the acquaintance with the instrument jot instruments of each of the witnesses, and there was also a detailed ¡and minute description given them of the Bott violin, the measurements of which do not seem to be in full accord with those of Exhibit F 1. The history of that exhibit (in which there is one important gap) as given by the defendant’s witnesses is in effect that it was originally an ordinary, if not cheap, French article, and one — 203 — •of them swears that it was counterfeited hy the defendant’s direction hy erasing the name of the French maker and hy putting on it .a forged label or mark of manufacture and a spurious date, and it was in that condition offered to a supposed intending purchaser for '$5,000. On this one line of oral testimony, the jury were authorized to find the verdict they rendered if they believed the witnesses for the prosecution. Its effect -upon one reading the record is to •create not only a moral conviction that the defendant had in his possession the Bott violin, but also to satisfy the reader that the charge in the second count of the indictment was proven to a legal certainty so far as that may result from weighing conflicting testimony. But the foregoing considerations do not by any means dispose of the case. While pursuing the inquiry only on one line, an appellate court may declare the verdict of the jury to be supported, yet •there was another line of proof, claimed to have been improperly .allowed, which may have been that on which the verdict was arrived .at. It was made so conspicuous' and almost controlling in the rulings of the court and was so prominent a feature of the trial that we cannot assume that the jury were not induced by it to find the defendant guilty. The issue as to the identity of the violin so far as it has been above considered, depended on the credibility of witnesses, and that was exclusively for the jury. Had there been no other evidence than that relating to the theft, the defendant’s knowledge of it and the oral statements of the witnesses as to identity, we could feel assured that the result was attained by the jury relying upon the knowledge -and veracity of the witnesses for the prosecution on the latter point, although they may have given heed .■also to circumstances telling against the defendant, but to which it is not necessary now to advert. But the other line of evidence may have been, as before remarked, influential and even decisive with the jury. The defendant now contends and the argument has been •earnestly, ably and ingeniously presented, that but for it the jury might have declined to convict and at least have found a reasonable •doubt to exist, but that with it such an atmosphere was created and such facts presented that a conviction became inevitable. That it was fatal in character is clear. It is necessary, therefore, to inquire whether it was. properly allowed, and if so, whether it was properly dealt with by the court. The Bott violin was stolen on the 31st of — 204 — March,. 1894. The next day Mrs. Bott informed the defendant of the theft. She consulted him as to steps to be taken for the recovery of the instrument. He advised her to advertise for it, and in July, 1894, he handed her a paper, known in the case as Exhibit Ho. -11, upon which was' inscribed in lead pencil, partly in capital letters and partly in script, the following, viz.: “ Violin lost. $500 reward. Mo questions asked for return of instrument taken, from residence of Jean Bott, March 31st, 1894, 355 West 31st St. Absolute Safety and Secrecy guaranteed. Victor S. Flechter. Ho. 23 Union Square, violin maker and dealer.” It is important to understand just what Mrs. Bott deposed to concerning this paper, and how it came into the case. She testified that the defendant handed it to her and said : “ ‘ I wrote something down here — if you have that printed and put a reward to it then the violin — you will get your violin back.’ * * * I saw him do something in regard to that paper. He erased something and then put March — put this in its place ‘ March 31st.’ * * * Q. Let me see if I understand that. At the time Mr. Flechter handed you this paper here, he said,. ‘ I give yon something which I have written down for you.’' A. Yes, sir. ‘ You must have it printed.’ ” An inspection of the paper shows that the word “ May ”' was erased and “ March 31 ” (the actual date of the theft) inserted over the erasure.- The paper was admitted in. evidence, and properly so. It was appropriate to show the defendant’s knowledge of, the theft, and- was proven to be a document he delivered and which he declared was prepared and written by him. Mothing of consequence is disclosed respecting the violin until the end of March, 1898, when one Durdan introduced to the defendant a Mr. Baird, under the name of Southan, and represented that Southan wanted to buy for .a Mr. Wright of St. Paul a genuine Stradivarius violin. On May 23, 1895, the defendant wrote a lettpr as follows: “ Mr. Southan, % H. P. Durdan, “ 353 Broadway, City: “ Dear Sir.—-Write to inform you that I have a genuine Stradi. varius to offer you and would like to see you at .your earliest convenience. - - - “ Very respectfully yours, ' “VICTOR S. FLECHTER.” — 205 — Meantime, and on May 21,1895, Mrs. Bott had written to the ■defendant a letter stating, among other things, that her husband had died; that she had removed to Hobolcen and thought of going to Germany and asked him to continue efforts to recover the violin, and informed him that before she left this country she would notify him of what her address would be in Germany. The letter bore the following as a postscriptum: “My addr. here Hoboken 306' River Street.” On May twenty-eighth, seven days after the date of Mrs. Bott’s letter to the defendant, and five days after his letter to Southan, Mrs. Bott received through the mail at Hoboken a letter, the text of it being partly in capital letters and partly in running script, the general appearance, style and arrangement of lines being identical with the unique penmanship .of Exhibit 11, handed by the defendant to Mrs. Bott in July of the previous year. It reads as follows: “ May 28th, 1895. “ To Mrs. Bott, 306 River St., Hoboken, H. J.: “ Dear Madam.— I wish to inform you that the violin taken from your house some time ago will be returned if you are willing to abide by agreements-that will be made between you and I later on. It was my intention first to dispose of it, but on account of its great value and the danger it would place me in by offering it for sale being a violin maker and dealer and not being able to sell with safety for such a large sum of money I concluded to wait. I have now thought the matter over and have come to the conclusion that a little money is better than none. If you are anxious for the return of the violin and willing to pay a sum of money, small compared with the value of the violin, I think we can make a deal. You can put a personal in the H. Y. Sun saying I am willing to give a sum of money for the return of the violin. Ho questions asked. Mrs. J. Bott. When I see your personal in the Sun I will let you know how the exchange can be made. “CAVE DWELLER” The theory of the prosecution was that Exhibit 15 was penned by the same person who wrote the advertisement of July, 1894 (Exhibit 11), and that, inasmuch as the defendant’s declai'ation that he wrote Exhibit 11 was in evidence, if it' could be proven that the two documents were in the same handwriting, the defendant’s pos — 206 — session of the Bott violin would, be established. There were circumstances connected with Exhibit 15 strongly indicating that it emanated from the same source as Exhibit 11. Mrs. Bott had removed to Hobo-ken after the death of her husband, which occurred at the end of April* 1895. In her letter tó the defendant, informing him of her husband’s death and her change of residence, she gave her address in. Hoboken. The “ Cave Dweller ” letter is directed to that address. It came from a person who knew of the theft; was ih the exact style of the peculiar penmanship of Exhibit 11, related to the same subject as Exhibit 11, viz., a newspaper advertisement to be made by Mrs. Bott, the form of that advertisement being written in, the same characters and prepared in the same way as the newspaper-advertisement formulated for her by the defendant in July, 1894, If this were only a.casual coincidence it is a very remarkable one. The prosecution undertook to prove the identity of the handwritings in the first instance, by an ' expert witness, Mr. Ames. He stated his qualifications, that he had been in the business of an expert in. 'handwriting for twenty-five years, and said : “I have testified on the subject of disputed' handwritings in probably every court in the-United States — well, every grade of court - and Canada.” ' The record must now be scanned to see the manner in which tins line of evidence came-before the court. The witness was shown Exhibits-l 11 and 15, and was asked if he had compared the two papers. It was objected to only on the ground of immateriality. The objection was overruled. The witness answered that he had compared the two papers and that, in his opinion, they were in the same handwriting. Thereupon Exhibit 15 was offered in evidence. Then the defendant’s counsel said : “ We object to the'introduction-of it-on the ground that the basis laid for it by the expert is'not the proper-foundation for admitting it in evidence or offering it in evidence.” That it was material.needs no argument. Precisely what was meant by “ the basis laid for it by the expert ” is not quite clear. It does not seem to be disputed that a qualified person may testify to handwriting. This witness was qualified. It was not sought to cross-examine him as to his qualifications before the letter was offered and admitted in evidence. If the- objection meant that a -comparison of the handrwriting of the two papers was not the proper way of proving thé letter it is plainly untenable. An expert could speak only from a — 207 — comparison. The substance of the objection may have been, audit is so argued, that Exhibit 11 was not a sufficiently authenticated standard for comparison. ETow, it is not disputed that it was given to Mrs. Bott by the defendant; that he prepared, or had it pre* pared, for her, and for the specific purpose of having it published in newspapers. The-declaration of the defendant that he wrote if-was in evidence. It is not such a standard of comparison as is mentioned in the statute of 1888 (Chap. 555), and as is required when an effort is made to prove handwriting under the authority of that-statute. It was a document in evidence, a paper already in the cause, proven by the defendant’s declaration to have been written by him. (Williams v. Conger, 125 U. S. 413.) We are referring now to the situation of the case when Exhibit 15 waff admitted in evidence and to nothing else. At that point there was no suggestion made as .to the legal sufficiency of a stand* ard. The evidence, so far as it had then gone, was cleaiv All the discussion concerning this “ Cave Dweller ” letter really arises upon testimony relating to it and to Exhibit 11 after they both came into the case. There is a great mass of suclitestimony. Several witnesses for the People swore to their belief that the defendant wrote Exhibit 11 from their general knowledge-' of his writing. The paper being in evidence, the testimony of the various witnesses, experts and others, respecting the handwriting waff to be considered by the jury as to its probative force and value as testimony. But the defendant called two witnesses, one named Abraham who swore that he wrote or prepared Exhibit 11, with the exception of the words “ 355 West 31st Street ” and the other,Jopling, who swore that he saw Abraham write it. If these two witnesses were to be believed, the whole of -the prosecution’s case was demolished on this branch of it. But it was for the jury to say whether they would believe them. There was enough disclosed: on the cross-examination of Abraham to throw great doubt upon his veracity, and as for J opling an affidavit previously made by him was put in evidence by the prosecution in which he states that the words “ 355 West 31st Street” in Exhibit 11 were written by him and that he did not know who wrote or prepared the other parts of that exhibit. It was not error to admit, the Cave Dweller letter in .evidence — 208 — Under the circumstances and at the stage of the trial at which it came- into the case, but there was so much contradiction in the subsequent testimony concerning the origin of Exhibit 11 that it became of the utmost importance that the jury should be correctly and clearly instructed concerning both it and Exhibit' 15. That was done. The recorder charged them with respect thereto, as follows: If as the defendant claims by his witnesses that the witness Abraham wrote the letter or the paper called the notice Exhibit 11if -that be true, if you believe his testimony,' then it-follows that there is no testimony before you to show that he wrote the Cave Dweller, because it is only upon the identification of the writer of the first •paper rests the identification of the writer of the Cave Dweller •paper — if you should find that the-defendant did not write the first paper, the notice paper, if you should find that as a fact, then I repeat there is no testimony to warrant you in finding that he wrote -fhe Cave Dweller; but if you do find as a fact that he wrote the .first paper, taking into consideration all the testimony which you [have heard regarding other writings to which I have not referred, -the testimony of Mrs. Bott.to the effect that he gave it into her hand and made- some alterations upon it in her presence, if you believe that he wrote the first paper, the notice paper, then there is ■testimony called expert testimony, before you from which you may infer; from which you may believe, that he wrote the second paper. nailed the Cave Dweller communication, and if you find these two facts, that he wrote the first paper called the notice and then that he wrote the second paper called the Cave Dweller, the anonymous communication, then you may infer in the writing of the anonymous-communication that this defendant had the violin in his possession .-at that time and that "he wrote that communication for some purpose, either to dispose of the violin by some surreptitious means or to conceal it and you may take it as evidence that he kept the violin in his possession for the purpose of concealing it and depriving and defrauding the true owner of its possession.” Enough has been said on this second line of evidence to show •that, as the case was tried, the question of the handwriting of the M Cave Dweller” letter was properly submitted to the jury, and that there was competent and sufficient evidence to sustain their finding, based on the belief that that letter was written by the defendant,, for — 209 — it contained evidence that the writer had the stolen violin in his possession or under his control on May 28, 1895. Here the two lines-of proof converge, for D urdan swears that on June twenty-third he went to the defendant’s shop, and in the defendant’s absence a. clerk took from a safe a violin. The witness noticed the mark and. date upon it, being the identifying mark and date of the Bott: instrument. He also swore that it was the same violin the defendant took to the house in Gramercy park, and which Mrs. Bott; then recognized as her husband’s violin. Thus, by both lines of.' evidence the verdict is supported. We have now to consider whether there were errors in the rulings; of the recorder for which the judgment should be reversed. It is; urged that he laid down “ one rule as to the examination of witnesses for the People and the contrary rule for the defendant.”’ Certain claimed specific instances of this alleged unfairness are ■brought to our attention. Gemunder, a witness for the prosecution as to the identity of the violin, was asked on his cross-examination if he ever removed a label he found in a violin at the time of its purchase and replaced it with another.. A general objection to the question was taken. It was not suggested that the question went to. the credibility of the witness. Whether he did or did not remove labels could not affect his knowledge of this particular violin. At; a later stage of the trial, one Schilbach, a witness for the defense,, testified that the violin (Exhibit F 1) was the violin before the magistrate. He swore that at the time the defendant bought that instrument it had an iron stamp branded on it, and he (the witness); scraped it out. He was then asked if he put a Stradivarius label on it, to which he answered, “ May be I did and may be not.” He was. then pressed further and asked, “You have placed Strad labels in Nicolas instruments ? ” To which he replied, “I am not sure about this.” “ Q. Have you put Strad labels on instruments that were; not Stradivarius ? ” That was objected to, and the court allowed an answer to be given on the ground that it affected the credibility of the witness. The two instances are not alike. If the defendant had wished to press the question to Gemunder on the ground that it went to credibility, he should have called the attention of the court to it. Again,' it is urged that there were conflicting rulings, respecting what Mrs. Bott testified to and other persons said in the — 210 — Magistrates’ Court, but they relate to immaterial and unimportant matters, and the same may be said of the testimony of the witness Bruckner concerning the value of the violin used on this trial. It is also argued that the right of cross-examination of the witnesses for the prosecution was improperly abridged. Instances are cited in which questions asked of Mr. Ames, Dr. Frazer, Curtis, Kelly, Kitchell and other expert witnesses were not allowed. It may have been technical error to exclude some few of them, but it is too much to say that, in consequence thereof, the right of cross-examination was unduly restricted, in view of the thorough, exhaustive, adroit and long-continued examination of each of the witnesses by the defendant’s counsel. The material inquiry is, whether, by the rulings on any of these questions, a substantial right of the defendant was impaired, and evidence kept out which it was due to him should have gone before the jury. The duty of the court in considering this subject is not uncertain. Section 542 of the Code of Criminal Procedure provides that on appeal the court must give judgment without regard to technical errors or to defects which do not affect substantial rights, and in commenting on that and the cognate section of that Code, section 684, the Court of Appeals says that those are mandates to which a court, with reason and discretion, should give full force and effect. (People v. Dimick, 107 N. Y. 13.) We do not consider that any of the criticised rulings were upon matters that affected the substantial rights of the defendant, or cut him off from any material line of inquiry he was entitled to follow, and that conclusion is reached, not by considering isolated questions selected from the record, and made the subject of animadversion, but from a very careful reading o’f the whole testimony of each witness upon whose examination a criticised ruling was made. It is further insisted that the recorder erred in allowing bank clerks and certain other persons to testify as expert witnesses to the handwriting of exhibits, and to give opinions respecting it. There is no distinct legal rule defining the precise qualifications of this class of witnesses. Whether one is qualified depends upon his knowledge of a given subject of. inquiry, his experience in connection with it, and his capacity to form an opinion. ’ Respecting handwriting, bank tellers and officers, and others whose daily business and duties compel them to scrutinize and examine writings, are always allowed — 211 — to testify as experts, and they may aid the jury in the comparison in a proper case. (Dresler v. Hard, 127 N. Y. 235.) It must of necessity rest in the main with the trial judge to determine whether a particular witness has the essential qualifications, and his decision will not be held to present an error of law, requiring a reversal unless it is against the evidence, or mainly without support in the facts appearing in the case. (Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56.) The prosecution’s witnesses on this subject were shown to be men of experience in matters of disputed handwriting. Twitcliell was paying teller of the Sixth 'National Bank, and for some years had the responsibility of passing upon disputed and questioned signatures. Ennis was paying teller of the Fourteenth Street Bank, in which the defendant kept an account, and spoke not only from general experience but from acquaintance witli the defendant’s signature. Curtis was the paying and certification teller of the Bank of the State of New York, and the study of disputed or questioned handwriting had been a principal part of his business for twenty years. Peck, paying teller of the Mechanics and Traders’ Bank, had an experience of seventeen years, and Decker of the same length of time in several banks, and he also knew the defendant’s writing. It is said that these .witnesses were accustomed only to pass upon checks in ordinary script, and hence were not qualified to testify as to such characters as appear in Exhibits 11 and 15, but it must be remembered that parts of those papers were in ordinary running script. We cannot hold that it was error to allow these witnesses to testify as experts. On the cross-examination of Eller, a witness for the defense, a ■question arose respecting the admissibility in evidence of a letter {and more particularly of its last paragraph) written by the witness and directly relating to the violin Exhibit F 1. Eller had testified that he was the real owner of that violin; that it had been stolen from him by one Perrotti; that he had found it in the defendant’s possession; that he brought a replevin suit against the defendant and the suit had not been settled; that the instrument had been changed, the “ f ” holes and the back, and that a Stradivarius label had been put in since it was stolen. It was really a Nicolas violin. This witness came up on the stand apparently a litigant unfriendly ■to the defendant. Ife also testified that, he was in the Magistrates’ — 212 — Court and saw Mrs. Bott there identify this same violin as her husband’s. If he were a credible witness his testimony was, of great consequence. The prosecution undertook to break its force by showing that he was not the disinterested, fair-minded, honest person he seemed to be; that terms of settlement of his replevin suit had been agreed upon, and that he was to share with the defendant in the price obtained on a sale of a counterfeited violin, the falsification of which he had covered or concealed. The letter is as follows : “ Clifton House, Chicag-o^ III., Mar. 23, 1898. “ Dear Counsellor.—Received your letter just now. . I have been expecting Mr. Flechter’s lawyer would settle with you; he got $900 for the violin, and Mr. Meyer arranged with myself for the half $450, which he proposed himself, and have been expecting a settlement on their part long ago. I have assisted Mr..Palmer, his able lawyer, with the hest of my ability, and have covered Mr. Flechter’s shortcomings of fakeing the violin,to a Strad. “ Yours most sincerely, “ JOHN ELLER, Met. Opera Co., Chicago, 111.” That letter was addressed to Eller’s lawyer (there is no question of privilege in the case), and it directly affected the credibility of the witness. It showed that’ terms of settlement had been agreed upon, and that he -'knew and had covered up and was to profit by the counterfeiting of his own stolen violin. The letter was competent on the subject of his credibility. It is contended that the last paragraph should not have been.put before the jury ; that it must have been greatly prejudicial to the defendant; that it was a mere statement without proof tha t he was a counterfeiter of violins (a fact which was subsequently proven by one of his . own witnesses). That is undoubtedly so, but it was also a statement of the witness as-to his own conduct and actions, stamping them with dishonesty and directly impairing his credit. It is said, also, that it tended to show that the defendant was using on this trial an instrument altered to resemble the one the prosecution claimed was in' the Magistrates’ Court, but that did not make it inadmissible if it were legitimately received for the other purpose, and we think it was. Another word is required upon the subject of the defendant having counterfeited violins. That he did so was shown on the cross-examination of the witness Schilba'ch. It was elicited in cross-exam — 213 — ining the witness on the history, as he claimed, of the violin Exhibit F 1, and was legitimate cross-examination. It is now argued that the defendant should have been allowed, as he offered (but was not permitted), to show that there were other counterfeiters of violins and that it was customary for dealers to counterfeit them. It is sufficient to say that the court was right in its ruling on this subject. It was sought to do away with the unfavorable inferences to be drawn from the evidence against the defendant-—-but his fraud arid wrongdoing could not be mitigated or palliated or excused or made inoffensive because he had rivals or competitors in the same fraudulent, and disreputable business practices. There is but one other matter requiring consideration, and that relates to a supplemental charge of the recorder concerning the witness Gremunder. He was one of the most important witnesses for the prosecution, and he swore positively that the violin in the Magistrates’ Court was Professor Bott’s. He knew it and had seen it several times. . The jury considered the testimony of this witness as of great consequence, for after they had' retired to deliberate they sent a communication to the court asking to have his testimony read to them. Thereupon they were sent for and the stenographer’s minutes of the testimony of the witness were read to them in full. The recorder made them a supplementary address concerning the credibility of the witness. It liad been attacked by the defense. Gremunder was present when the police magistrate gave his decision. He had been subpoenaed by the defendant to attend there. He was not called to the stand in that court. Gremunder remained silent. It is now claimed that this witness was not entitled to credit because, not being called by either side, he did not interrupt the magistrate, thrust himself into the case and demand to be sworn and allowed to testify. He had obeyed the subpoena, was in attendance waiting to be examined, but the case was submitted without calling him. Oil this particular point the recorder’s charge was correct and only just to the witness. Ho fair imputation could be made against him under- such circumstances. The jury were told that in all other respects his credibility was a matter for their determination. The judgment should be affirmed. Rumsey and O’Brien, JJ., concurred; Van Brunt, P. j., and Barrett, J., dissented.