I agree that the judgment of conviction should be reversed • on the law only and a new trial ordered as to both defendants.
The conversations with Bowen were admissible on either of two theories. Unfortunately, as to neither theory, because of the position taken by the prosecutor, did the court give the jury the instructions by which the conversations could be properly weighed. If the jury found that the conversations by Sullivan with Bowen, recited in the majority opinion, were repeated to Atkins and that Atkins understood what they signified, and acquiesced in their purport, namely, to the effect that a bribe should be paid to Atkins, then they would have been adopted by the defendants, the one defendant acting on behalf of both if they were conspirators.
The conversations with Bowen also could have been received on the theory that Bowen was a conspirator with the two defend*399ants on trial, proven circumstantially. In that event, the jury would have had the burden, under proper instructions, of determining whether in fact Bowen was a conspirator, and whether his conversations with Sullivan were pursuant to the conspiracy and in furtherance thereof.
There is no rule of law of which I am aware that permits the admission of evidence that is not competent, relevant, and material, solely for the purpose of clarifying evidence against defendants in a criminal case. Thus, in People v. Gleason (285 App. Div. 278), and in the authorities cited in that case there was a connection (i.e., relevance) between the preliminary matter which was received in evidence and the elements of the crime that were to be proved. The connection was shown, or was attempted to be shown, by evidence that was otherwise admissible on grounds of competency, relevancy, and materiality.
M. M. Frank, McNally and Stevens, JJ., concur with Botein, P. J.; Breitel, J., concurs in opinion.
Judgments unanimously reversed upon the law only, and a new trial ordered as to both defendants. The court has considered the questions of fact and has determined that it would not grant a new trial on those questions.