The indictment charged the defendants with being common gamblers under the provision of section 970 of the Penal Law, which provides: “A person * * * who engages as dealer, game-keeper, or player in any gambling or banking game, where money or property is dependent upon the result; * * * is a common gambler. ”
Section 275 of the Code of Criminal Procedure provides that an indictment must contain: “1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A plain and concise statement of the act constituting the crime.”' I think that the indictment was sufficient in form, and that a crime was charged under section 970 of the Penal Law. (Phelps v. People, 72 N. Y. 334; People v. West, 106 id. 293; People v. King, 110 id. 418; People v. Weldon, 111 id. 569; People v. Bright, 203 id. 73; People v. Herlihy, 66 App. Div. 534; People v. Adams, 85 id. 390.)
The learned counsel for respondents directs our attention to a long line of cases holding that an indictment is bad which does not charge the crime and also state the act constituting tha *226crime. This is the rule, but it has no effect on the question presented on this appeal, because the indictment charges the crime, viz., “ common gamblers,” and alleges the act constituting the crime, viz., that at a time and place specifically stated the defendants “did wilfully, unlawfully, knowingly and feloniously engage as dealers, gamekeepers and players in a certain gambling game commonly called ‘Klondike,’ where money was dependent upon the result.”
But one crime is charged and each defendant is charged with that crime. It follows that the decision of the learned County Court was erroneous and that the order of the County Court of Kings county sustaining the demurrer must be reversed.
Jenks, P. J., Burr and Thomas, JJ., concurred; Carr, J., dissented.
Order of the County Court of Kings county reversed and demurrer overruled.