(dissenting). The gravamen o£ the complaint is that defendant, during the closed season for pike perch took and possessed two fish on the 25th day of April, 1943, in violation of subdivision 6 of section 210 of the Conservation Law.
The only question here is the sufficiency of the evidence. The court correctly found that there was insufficient credible evidence. There have been three trials of this issue involved here and in each instance the State has failed to succeed. Inasmuch as both sides moved for a directed verdict the court’s disposition of it is the same as if a jury rendered the verdict. (Glanzer v. Shepard, 233 N. Y. 236.) The judgment and order should be affirmed.
Hill, P. J., Brewster, Foster and Lawrence, JJ., concur in Per Curiam opinion; Heffernan, J., dissents in a memorandum, and votes to affirm.
Order and judgment appealed from reversed on the law and the facts, plaintiff-appellant’s motion for a directed verdict granted, and judgment directed in favor of plaintiff-appellant and against the defendant in the sum of $110, with costs in the court below and in this court.