¶1(dissenting). In my opinion, the error in admitting the evidence of the Orsino transaction, over the objection of the defendant’s counsel, cannot be disregarded on the ground that it was not prejudicial. The proof of the failure to com*497píete the Orsino contract could only have had the effect of arousing prejudice against the defendant; it had no legitimate relevance to the issue of the defendant’s guilt of the crime charged. The crime charged was not the failure to perform a building contract or the making of an improvident contract or engaging in the building business with inadequate working capital, but the crime of diverting funds in violation of section 36-a of the Lien Law. There was no proof of diversion of funds in the Orsino transaction. The proof of that transaction did not tend to show a common plan or scheme nor did it tend to prove any other material fact such as absence of accident or mistake, motive, intent, knowledge or identity (People v. Formato, 286 App. Div. 357, 364, affd. 309 N. Y. 979). Nevertheless, the court not only allowed Mr. Orsino to testify that the defendant had failed to perform his contract but the court also allowed a subcontractor to testify that he had an unpaid lien on the Orsino job. The District Attorney referred to the Orsino transaction in his summation in these prejudicial terms: “ According to Mr. Orsino’s testimony, the same proposition. It follows the pattern. Go in and grab all you can grab and walk off the job. Leave the liens pile up and claims pile up. Maybe he thought that these people would throw up their hands in despair and lick their wounds and walk away. They did not.”
¶2The court’s charge did not cure the error; on the contrary, it aggravated it. The court said: ‘ ‘ The testimony of Mr. Orsino’s transactions with the defendant are merely offered to show the overall picture, it being contended by the prosecution that the cases under indictment were part of a general plan on the part of the defendant in connection with the construction of a group of houses at Ravena.” The jury was thus authorized to find a general plan embracing the commission of the crime for which the defendant was on trial, when there concededly was no proof of any such general plan.
¶3The judgment of conviction should be reversed and a new trial ordered.
¶4Bbrgan and Gibson, JJ., concur with Coon, J.; Halpern, J., dissents, in a memorandum, in which Foster, P. J., concurs.
¶5Judgment affirmed.