dissent">Hill, P. J.

(dissenting). Appellants have been convicted of

burglary in the third degree, charged to have been committed in the city of Elmira. A police officer at about two-thirty o’clock in the morning, approached a building for the purpose of ascertaining if the doors were locked. He heard sounds which led him to investigate, and found a broken window in the rear, and saw the defendants in the interior, one of them attempting to break open a slot machine. He also saw a cigarette vending machine lying on the floor broken and a portion of the contents scattered about. He called another officer to his aid. The defendants ran from the building and went in different directions. Francis escaped although the officer fired one or more shots in his wake. He was arrested several days later. Bernard ceased his flight and surrendered after being fired at by another officer. The evidence would sustain a finding that defendants took some of the money from the slot machine.

*435A reversal is sought chiefly upon the ground that there was failure to establish unlawful entry. A witness Sassano leased the premises and he with three associates purported to conduct a club which they christened “ The Patch Athletic Club.” It seems that some years earlier the building had been occupied by a club having that name. Cards of admission bearing the club name were issued to habitues, and a person could receive a card by visiting the premises. Various forms of gambling were the only activities carried on. The managers were so desirous to acquire new patrons or members that they paid the fares to taxicab drivers who brought people from the uptown section of the city. The defendant Francis on one occasion had “ raked the game.” It is explained that this technical term means that Francis took from the money deposited upon the gaming table the amount which the proprietors received.

The People called Sassano and his associates as witnesses. The evidence which they gave was hostile and indicated that their sympathies were with the defendants. This attitude was doubtless induced through self-interest. They gave evidence tending to show that the defendants were members of the “ Club,” and it is argued that, therefore, they had a right to break out a window, enter the building and break open a gambling device and a vending machine to obtain money and merchandise. It is obvious from the record that the “ Club ” existed only in name and in fact was a subterfuge adopted by the proprietors in an attempt to safeguard themselves against criminal prosecution.

The jury was justified in refusing to believe the evidence given by the proprietors and from the facts proven to draw the irresistible inference that the defendants were committing burglary. None of the errors claimed to have been committed on the trial are sufficient to require reversal.

The judgments of conviction should be affirmed.

Crapser, J., concurs.

Judgments of conviction reversed on the law and facts, indictments dismissed, and defendants discharged.

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