Boardman, J.
In the case of Hannah v. McKellip, 49 Barb. 342, this precise question was decided, and it was there held that the evidence offered was inadmissible, and for such error a new trial was granted. That case has been since followed in Berner v. Mittnacht, 2 Sweeney, 582.
Being satisfied that the foregoing decisions are sound in principle and binding as authority, the judgment of conviction in this case against the plaintiff in error must be set aside and a new trial granted. Parker and J, Potter, JJ., concurred.
New trial granted.