The opinion
This is an appeal from an order of the Supreme Court, Clinton County, dated December 10, 1946, granting respondent permission to inspect the Grand Jury minutes and from a further order of said court dated and entered December 14, 1946, dismissing said indictment and further ordering that the present bail of Floyd Brown, respondent, be continued and that the case against Floyd Brown be resubmitted to the next Grand Jury convened in Clinton County. Floyd Brown was indicted on two counts for criminal negligence in the operation of a motor vehicle resulting in death, in violation of *973 section 1053-a of the Penal Law of the State of Hew York, and on a third count charging respondent with assault in the third degree, in violation of subdivision 2 of section 244 of the Penal Law. The granting of an inspection of the Grand Jury minutes rests in the sound discretion of the court when facts are presented to him upon which he may exercise his discretion. The facts for this application justify the court in granting the motion for an inspection. In the presentation of evidence to the Grand Jury illegal evidence was given by three witnesses in violation of section 256 of the Code of Criminal Procedure which states “ The grand jury can receive none but legal evidence.” This illegal evidence could not have enlightened the Grand Jury as to the happening of the accident or the cause thereof. It could only have enlisted sympathy. The order of the court dismissing the indictment and ordering it resubmitted to the Grand Jury not only protected the defendant’s rights, but did not prejudice the People’s case. Resubmission is a safe course to pursue when illegal evidence has been iniroduced and considered. Order affirmed. All concur.