Order, insofar as it dismisses the information, reversed and a new trial ordered in a memorandum. Where there is no record of the testimony and the proceedings had upon a trial without fault of the Justice, the judgment of conviction should be reversed and a new trial ordered. Under the circumstances of this case, the County Court lacked the power, as a matter of law, to dismiss the information. ( People v. Saalfield, 14 N.Y.2d 915, 917; People v. Kaplan, 278 App. Div. 665; People v. Cittrola, 213 App. Div. 674, 677.)
Concur: Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN. Chief Judge DESMOND dissents and votes to affirm upon the ground that the County Court had power in this situation under section 764 of the Code of Criminal Procedure to dismiss the information.