Opinion
March 15, 1960
Order unanimously reversed on the law and the facts and in the exercise of discretion, the writ of habeas corpus is sustained, and the bail exonerated. Had relator-appellant originally given the answers and explanations now offered, his testimony could not be said to be so false and evasive as to present "not the slightest probability of truthfulness". (Cf. Matter of Commission of Investigation v. Lombardozzi, 9 A.D.2d 95, 98; People ex rel. Miranda v. McCloskey, 9 A.D.2d 751.) It may well be, as respondent contends, that the testimony offered at the last hearing was tailored to fit the pattern of this court's opinion in People ex rel. Valenti v. McCloskey ( 8 A.D.2d 74, affd. 6 N.Y.2d 390); but it cannot be held to be so palpably and transparently a fabrication as to be deemed a continued refusal to answer, warranting further commitment under section 406 of the Civil Practice Act.
Concur — Botein, P.J., Breitel, Valente, Stevens and Bergan, JJ.