(dissenting). I vote to affirm the judgment of conviction. I am of opinion (1) that the guilt of the defendant of the *175crime of perjury in the second degree, as charged, was proved beyond a reasonable doubt in the Court of Special Sessions; and (2) that such court had jurisdiction of the subject-matter of the designated charge of perjury in the second degree, notwithstanding the several allegations of the information, conclusory as distinguished from factual in their nature, suggestive of perjury in the first degree. Such allegations may be disregarded as surplusage in the information. (Joyce on Indictments [2d ed.], §§ 330, 331; vide People v. Laurence, 137 N. Y. 517, and cases cited.) They find no basis in the well-pleaded allegations of fact in the information which support the pleaded charge of perjury in the second degree. The same principles apply to an information as to an indictment. “ The indictment * * * must charge the crime, and it must also state the act constituting the crime.” (People v. Dumar, 106 N. Y. 502, 509; Code Crim. Proc. §§ 222, 275, 742.) The information here does indeed allege that in the abortion trial of George Rothenberg “ it became material to inquire and ascertain whether the said defendant Lester Samuels had received any communications from George Rothenberg the defendant on trial for said abortion in connection with the said abortion and the condition of one Mrs. Blake, upon whom the said abortion was performed;” and at the conclusion of the information there is a general conclusory allegation of materiality. Nevertheless when these conclusions are read in connection with the factual allegations they do not make the charge one of perjury committed “as to any material matter ” within the purview of section 1620-a of the Penal Law (and see Penal Law, § 1620-b), or perjury in the first degree. That the testimony pleaded in the factual allegations was legally not material appears on its face. The allegedly false testimony of the defendant on the Rothenberg trial, as charged in such factual allegations, related solely to what the defendant testified to before the grand jury which indicted Rothenberg; and since it related solely to the fact of the defendant’s previous contradictory statements, it was manifestly not as “ to any material matter.” Hence the perjury committed was in the second degree. Therefore, the Court of Special Sessions had jurisdiction. Consequently the judgment of conviction should be affirmed. The information in this case is distinguishable from that in People v. Erickson (259 App. Div. 738), in which the factual allegations of the information, when separated from those which were conclusory, charged perjury in the first degree, of which crime the Court of Special Sessions lacks jurisdiction.
Judgment of the Court of Special Sessions of the City of New York, County of Queens, reversed on the law, the information dismissed and bail exonerated.