Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. While the use of the machine, with the cotter pin inserted, may be innocent enough, save for the possibility of a storekeeper's exchanging the tokens or slugs for merchandise or cash, of which there is no proof here, the extraction of the cotter pin makes the machine a slot machine in violation of sections 970-a and 982 of the Penal Law. These machines are undoubtedly manufactured and leased for gambling purposes, with the insertion of the cotter pin as a cloak or cover therefor. The police were justified in seizing them. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P.J., Kapper and Scudder, JJ., concur; Hagarty and Carswell, JJ., concur in result. Settle order on notice.
See Penal Law, § 970-a, added by Laws of 1917, chap. 516, as amd. by Laws of 1922, chap. 667; Id. § 982, as amd. by Laws of 1928, chap. 543. — [REP.