The defendant was apprehended early in the morning of January 29, 1927, as he was entering a taxicab in front of premises 151 Bleecker street. At the time the rear seat was occupied by two men. The evidence was somewhat contradictory as to whether the defendant had actually seated himself on the small front seat on the left and had closed the door of the taxicab or whether he was in the act of so doing, when the arrest was made. The testimony of the arresting officer established that when he *137opened the right-hand door the man who sat on that side of the rear seat dropped a revolver to the floor. At the feet of the man who sat to the left, and whom the defendant faced, were found two other revolvers.
The court in its charge instructed the jury in substance that if they believed the evidence of the prosecution they would be entitled to find that the defendant was in' constructive possession of any one of the three weapons found in the taxicab. We are of opinion that the learned court erred in so instructing the jury and that the People’s evidence when considered as a whole was insufficient to warrant the jury in finding the defendant in constructive possession of any one of the weapons.
The driver of the taxicab testified that the two men who occupied the cab when the defendant entered it engaged him shortly before midnight to drive them from Brooklyn to Manhattan. After crossing the bridge he was instructed to drive to West Houston and Thompson- streets. When he reached this point the two men paid him a dollar and instructed him to wait. He kept his engine running while one of the two men entered a building and the other disappeared behind his car. A little later he saw the two men enter the same tenement where they remained for a short time. They returned, re-entered the taxicab and instructed the driver to proceed back to Brooklyn. The witness drove north on Thompson street to Bleecker street where he turned east and just after he turned into Bleecker he was told to pull over to a restaurant or “ Coffee Pot ” on the left-hand side and was instructed by one of the occupants of the cab to “ open the door and wait a minute.” The witness did so and just as he brought his car to a standstill three or four feet away from the curb the defendant came hurriedly from the open door of the restaurant and entered the taxicab. It appears that the taxicab had been under surveillance by the arresting officer who saw it on Thompson street. His suspicions were aroused because the lights on the cab were out and when he saw the two men re-enter the taxicab he trailed it to the Bleecker street address.
It is urged by counsel for the People that the jury were warranted in drawing the inference that while the two occupants of the car were in the tenement on Thompson street they may have telephoned the defendant and arranged with him either to provide the revolvers or at least to enter with them upon some criminal conspiracy; and further, that the testimony of the officer to the effect that he saw the defendant after he entered the taxicab in a stooping position with his right hand on the taxicab door and his left hand in the neighborhood of his lap was sufficient to warrant the inference *138that it was he who brought the two revolvers found on the floor of the cab.
The defendant did not take the stand, but when arrested told the officer that “ he never had those guns and that he was going home, that they gave him a lift-because it was raining.” He further said he lived four blocks away on Carmine street. Falsity of his statement as to place of residence was not proven.
A mere recital of this evidence is sufficient to establish the inherent weakness of the prosecution’s case. In addition, the officer testified positively that he did not see a revolver in either hand of the defendant at any time. The stooping position of the defendant as described by the officer is just as consistent with movements that would be required of him in taking his seat in the cab as it would be with the act of placing weapons at the feet of the man to the left.
It is true that possession in a case of this character has been defined by the Court of Appeals as one “ which places the weapon within the immediate control and reach of the accused and where it is available for unlawful use if he so desires.” (People v. Persce, 204 N. Y. 397.) But the court further said, “ of course, the possession which is meant is a knowing and voluntary one, * * *.” While the weapons found on the left side of the floor of the taxicab might be said to be within the immediate reach of the defendant, there is nothing to show that they were available for use for the simple reason that there is insufficient to show under the circumstances here disclosed that the defendant had any knowledge of the presence of the weapons. So far as this record stands, he may have been entirely ignorant of their presence and of any criminal purpose on the part of the other occupants of the cab. The evidence is wholly insufficient upon which such knowledge may be presumed.
The cases relied upon by the People are readily distinguishable. In People v. Amberg (216 App. Div. 791) the defendant entered the taxicab in which the revolvers were found with three other persons and had been in the cab for an appreciable length of time. In People v. Birnbaum (208 App. Div. 477) the defendant admitted that he lived in the room and it was established that he and his two companions had frequented it. In People v. Cassassa (146 App. Div. 953) the defendant was sitting at a table with other men. In the pocket of an overcoat hanging on the back of the chair on which he sat a revolver was found. An inference that he either owned or possessed the coat might fairly be drawn. Here, as already appears, there is some doubt as to whether the defendant had actually seated himself in the taxicab. We do not think that he had been in it for such an appreciable length of time as *139would justify an inference that he had knowledge of the presence of the weapons.
The judgment of conviction should be reversed and the indictment dismissed.
McAvoy and Pboskaueb, JJ., concur; Mebbell and Finch, JJ., dissent.