The defendants are of an unworthy type. But the law is to be applied alike to the worthy and the unworthy. There was not sufficient proof of force or fear of bodily harm to establish the crime charged. There was no corroboration, which is indispensable to sustain a conviction for rape. The complainant was of mature age. She was not an inexperienced person. She left a place of safety on the invitation of one of the defendants whose arm was in a sling. What then ensued need not be recounted in detail, but all of it, not merely part thereof, must be considered. *172On her own story, her subsequent conduct disclosed she was not unaware of that defendant’s purpose and in the successive stages she indicated that she was too co-operative to be the victim of a rape. She apparently acquiesced in or welcomed his conduct. She was more concerned with its effect upon the condition of her apparel than she was for her virtue. The same is true with respect to the acts of the other defendants. She apparently rued the affair and told a story of a character that is properly described as one of “ feigned or passive or perfunctory resistance.” (People v. Carey, 223 N. Y. 519, 520.) On her own story her resistance was not genuine or active, or proportionate to the inherent needs of the situation. (People v. Carey, supra.) The requirement of adequate proof of force or fear and of corroboration may not be disregarded. (People v. Manowitz, 236 App. Div. 809; affd., 262 N. Y. 555.) This rule is founded on centuries of social and legal experience in this type of alleged offense. (1 Hale P. C. [1778 ed.] 633; People v. Hulse, 3 Hill, 309, 315 et seq.; People v. Friedman, 139 App. Div. 795, 796.) The law wisely recognizes that some complainants are designing or vicious. If it were not for the rule of corroboration, a defendant would be at the mercy of an untruthful, dishonest or vicious complainant.
The judgments of the County Court of Queens county convicting the defendants of the crime of rape in the first degree should be reversed on the law, the indictment dismissed, and the defendants discharged from custody.
In each case: Lazansky, P. J., Adel and Close, JJ., concur; Hagarty, J., dissents in opinion and votes to affirm the judgments.