So far as the record informs us, the game conducted by the defendant was one. involving a trial or test of skill, and not one dependent upon the drawing or choice of numbers. If the fact is otherwise, as the People’s brief-suggests, appropriate evidence should have been offered to bring the case within the statute.

Penal Law, section 974, permits a prosecution where the result of a wager is dependent on the selection of numbers, even though not strictly the game of policy, but in such circumstances the information should be framed upon that theory.

The judgment should be affirmed.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.