Order sustaining a writ of habeas corpus and discharging respondents reversed on the law and the writ dismissed. There was some evidence tending to prove that the game of "Five Star Final" as operated by respondents constituted a lottery within the meaning of sections 1370 and 1376 of the Penal Law in that the dominant element determining the result of the game was chance and not skill. ( People ex rel. Ellison v. Lavin, 179 N.Y. 164. ) Although a conviction based on such evidence might not be upheld, the evidence was sufficient to confer jurisdiction in the magistrate to hold respondents for trial. Since the function of the court upon the return of a writ of habeas corpus is solely to ascertain whether the magistrate had jurisdiction to commit the relators, the writ should have been dismissed. ( People ex rel. Bungart v. Wells, 57 App. Div. 140.) Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.