I concur with so much of Mr. Justice' Ingraham’s opinion as advises the affirmance of this judgment; also that the testimony of the physicians who had been examined in the trial of the civil action was admissible and for the reasons stated by him. 1 do not agree that if said testimony was erroneously admitted nevertheléss said error should be disregarded and the judgment affirmed under the provisions of section 542 of the Code of Criminal Procedure. ' The testimony of the four physicians touched the very gist of the case. The defendant was indicted for perjury in having falsely sworn that he had received certain specified in jmies because of" having been thrown from a car by the negligence of the servants of the street car company and that he had been prior to the accident in perfect health and that both of his arms and legs prior to said day were in perfect physical condition. These physicians were called to prove the falsity of these statements, and gave testimony as to defendant’s physical condition which tended to, if it did not conclusively establish the falsity of defendant’s testimony upon that material point. That question of fact was for the "jury. This court lias no right to say that with that testimony excluded the verdict returned would have been found.
*772“The learned Appellate Division held it tobe error to admit thisevidenee, but that it was not ground for reversal because .‘.with this evidence out, no other conclusion on the part of the jury was possible’ than the guilt of the defendant. But whether it was possible or not,, with this evidence out, was for the jury to decide, and this they have not yet done, and it is the defendant’s right that they should do it. * . * * .The evidence was material and of a tendency prejudicial to the substantial rights of the defendant. (Code Crim. Proc. section 542).” (People v. Maine, 166 N. Y. 50.)
Therefore,,! am of-the opinion that if it was error to admit this evidence the judgment should be reversed. But as I think the testimony competent under the reasoning of -the Court of Appeals in Clifford v. Denver & Rio Grande R. R. Co. (188 N. Y. 349), although the precise point here involved was not before the court in that case, I vote to affirm the judgment.