(dissenting). Defendant was charged with a violation of section 1897 of the Penal Law, which section makes it a crime to possess a pistol. The police reserve was created under the provisions of chapter 651 of the Laws of 1917 for service during the continuance of the existing war. Thereafter, by section 308-b of the Greater New York Charter (Laws of 1901, chap. 466, as added by Laws of 1920, chap. 711),. it was expressly continued under the control and jurisdiction of the police commissioner. Defendant’s appointment as a police reservist is not disputed and it is conceded that he had that status at the time of his arrest. As such, police reservist he was a peace officer. Section 5 of chapter 711 of the Laws of 1920 served to amplify his powers when on active duty, but his status as a police reservist remained even when not ordered on active duty. Subdivision 13 of section 1897 of the Penal Law (as amd. by Laws of 1921, chap. 297) expressly exempts peace officers from its provisions. The police commissioner at one time permitted and later revoked bis order to reservists to carry *336pistols. Assuming that the revocation of the permit to reservists to carry pistols is tantamount to an order directing them not to carry pistols except when on duty, a failure to obey the police commissioner may have rendered the defendant hable to charges, but it did not make him guilty of violating section 1897 of the Penal Law, of which he has been convicted.
I,- therefore, vote to reverse the judgment of conviction and discharge the defendant.
Merrell, J., concurs.
Judgment modified by reducing sentence to one month, the time intervening between conviction and granting of certificate of reasonable doubt to be credited upon said sentence, and as so modified affirmed. Settle order on notice.