I dissent from the opinion of the chief judge in this case, particularly from that part of it which holds that the defense of an alibi raised in the most direct manner possible the identity of the person *Page 44 who assaulted the complainant on the 15th day of September, for the reason that before any defense was offered by the defendant the People were permitted to introduce the testimony referred to in the opinion as a part of the People's case. We cannot assume that the People then knew the grounds of defense which would be offered by the defendant, and the evidence criticised was admitted as original proof in the case at the opening thereof. I concur with the opinion of Mr. Justice SCOTT of the Appellate Division and vote for affirmance of the order of the Appellate Division.
HISCOCK, CHASE, COLLIN, CARDOZO and SEABURY, JJ., concur with WILLARD BARTLETT, Ch. J.; HOGAN, J., dissents in memorandum.
Judgment accordingly.