(dissenting). The decision of the majority seems to us to rest upon an unduly narrow construction of section 887 of the Code of Criminal Procedure, defining vagrancy. Clause (c) of subdivision 4 thereof, under which defendant was charged in the information, provides that a person is a vagrant who ‘‘ loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act ’ ’. This section is part of a comprehensive series of enactments passed by the Legislature in an effort to stamp out the crime of prostitution, with all its attendant evils, by controlling every facet of the illegal enterprise. (See, e.g., Multiple Dwelling Law, §§ 12, 350-360; Public Health Law, § 343-hh; Penal Law, § 3, subd. 9; §§ 70, 1146, 1148, 2460; Civ. Prac. Act, § 1417.) The law’s primary concern is not with punishing the females involved, as is evidenced by the comparatively light punishment provided in section 887 of the code compared to the more severe penalties to which others who make money out of the prostitution of women are subject. Section 887, however, has a vital place in the statutory scheme and is essential to its effective enforcement. The decision here made, we are convinced, restricts section 887 in a manner never contemplated by the Legislature and will undoubtedly hamper our law enforcement officers in their continued attempts to control this social evil.
The majority opinion states that “ there is not the slightest bit of evidence that she [defendant] committed an act of prostitution or of unlawful sexual intercourse or that she loitered any place for the purpose proscribed by the statute.” We find no requirement in the statute (§ 887, subd. 4, cl. [c]) of proof of an act of prostitution or of unlawful sexual intercourse in order to support a conviction thereunder. The statute makes material the defendant’s purpose, not whether she accomplished it. We are here concerned with a provision which is aimed at a preliminary step in the chain of activities, all of which the Legislature, for the common good, has interdicted. The quoted provision of the code *422is designed to forbid persons from malting themselves available for unlawful sexual intercourse. Basically, the essential element of the offense is the act of the defendant in holding herself forth for the prohibited purpose, i.e., the act of offering to commit unlawful sexual intercourse.
The argument is made that there was here no proof that defendant “ loitered ” within the meaning of the statute. To reach that conclusion, the majority opinion ascribes to the word ‘ ‘ loiters ’ ’ a strict dictionary definition and ignores the evident intent and purpose of the Legislature. It is commonplace that every statute must be read in the light of the mischief attempted to be remedied. So read, we think that this provision has a meaning and scope beyond the mere dictionary definition of the word “ loiter ”. Logically, the majority decision would make it incumbent upon the People to prove that a defendant lingered aimlessly or idly about a place or moved in a slow and lagging manner for the proscribed purpose in order to sustain a vagrancy conviction under this section of the code — a conclusion which cannot represent the intent of the Legislature.
The decision thus thwarts the will of the Legislature and puts beyond the reach of the law persons who, in the popular as well as the legal sense, have committed a recognized offense. This decision, moreover, inevitably results in the drawing of unreasonable, untenable and unnecessary distinctions between different modes of commission of the same, essentially criminal act. A female who holds herself forth for the purpose of prostitution on a street corner may be convicted therefor, but a female who performs the same act of holding herself forth in her home over the telephone is now rendered immune from punishment. The Legislature, we submit, could not have intended so incongruous a result. That the Legislature did not so intend was held over thirty years ago in People v. Phelps (189 App. Div. 775-776), where the court said: “ The county judge was of the opinion that in order to sustain a conviction under subdivision 4 of section 887 of the Code of Criminal Procedure, it was incumbent upon the People to ‘ establish that the defendant was a common prostitute or night walker, that she solicited to the annoyance of the inhabitants or passersby, and that she was there in a public place for the purpose of prostitution. ’ This was a mistaken view of the law. The proof established that the defendant *423offered to commit prostitution, and this proof was all that was requisite to a conviction. * * * ”
The majority opinion further states that “ assuming that one may ‘ loiter ’ * * * in one’s own home, the record is devoid of any proof of such an act. ” As we have construed the section here under consideration, we think it plain beyond dispute that defendant’s guilt thereunder was satisfactorily shown. The three telephone conversations — which were intercepted by the police under authority of a court order — must be read together and when so read they leave no doubt as to defendant’s use of her apartment as a base for the purpose of procuring others to commit unlawful sexual intercourse. That was not the only evidence of guilt. The Magistrate in a carefully considered decision expressly found corroboration of the testimony of the police in the testimony of two of the three codefendants tried with Mrs. Choremi. Those two codefendants were the only two of the four who testified and one of them was Miss Blavier. In addition when the arrest of Mrs. Choremi was made at her home on the same day on which the last conversation took place — May 21st — she was told by the police officer: “We have intercepted telephone messages between you and Blavier in which you made dates to go out with men. Is that right?” Mrs. Choremi replied: “Yes, I made dates with Blavier.” On May 5, 1948, defendant asked her accomplice codefendant, another woman, “ Did you make that date for me?” and received the reply, “ Yes, you’ll be at my apartment tonight at 6:30. They are very nice and it’s for twice what you expect, you know.” Defendant agreed to be there at the hour suggested. On May 20, 1948, the date specified in the information, she made another appointment of a like nature, the codefendant this time making the comment that the person defendant was to meet “ had not been laid in a month, and so you can get paid and can enjoy yourself at the same time. ’ ’ The next day, defendant expressed disinterest in meeting another person on the ground that the money was insufficient. The codefendant said, “You know you can’t meet fellows like we had yesterday every day. They were exceptional and you can’t always get that money ”, to which defendant replied, “You can call me here if it’s for more.” We must confess that we are unable to understand how these conversations may be read without leading to the inference that defendant, in her apartment, on *424May 20, 1948, ‘6 loitered ” — as we have construed that term — for the purpose of procuring another to commit unlawful sexual intercourse.
We do not think the case of People v. Reynolds (300 N. Y. 616) is in point. The defendant there was charged with a violation of clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure which involves prostitution. Miss Blavier, one of the three codefendants, was charged with that here as well as with a violation of clause (c) of subdivision 4 of section 887. Mrs. Choremi, however, was charged only with the latter and, as we have already pointed out, there is no requirement under clause (c) of subdivision 4 of proof of an act of prostitution or of unlawful sexual intercourse to support a conviction thereunder. It no doubt is the fact that Mrs. Choremi could also have been charged with a violation of both subdivisions but she was not and thus People v. Reynolds (supra) has no application here.
There is another, and conclusive, reason why this conviction should be affirmed. We have referred above solely to clause (c) of subdivision 4 of section 887 of the code. Clause (a) of subdivision 4 provides that a person is a vagrant “ who offers to commit prostitution (Italics supplied.) Whether or not defendant here loitered for the purpose of procuring another to commit unlawful sexual intercourse, it cannot be disputed, after considering her telephone conversations, that she at least offered to commit prostitution. Defendant was charged with a violation of clause (c) of subdivision 4 of section 887, but as we recently held in People v. Feiner (300 N. Y. 391, 397-398), “ it is settled that the judgment of conviction in a case such as this will be affirmed if the evidence establishes a violation of any of the subdivisions of the section. (People v. Hipple, 263 N. Y. 242, 244.) ” The Feiner and the Hipple cases (supra) were concerned with the offense of disorderly conduct, but we see no substantial distinction in this respect between that offense and the offense of vagrancy.
The judgment of conviction should be affirmed.
Loughran, Ch. J., Lewis and Desmond, JJ., concur with Fuld, J.; Conway, J., dissents in opinion in which Dye and Froessel, JJ., concur.
Judgments reversed, etc.