For selling intoxicating liquor to a police officer in premises located in the borough of Manhattan, city of New York, and known as the Turf Club, the defendant was charged with and convicted of disorderly conduct defined by subdivision 2 of section 722 of the Penal Law (as amd. by Laws of 1924, chap. 476) as follows:
“ In cities of five hundred thousand inhabitants or over any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
“ 2. Acts in such a manner as to aimoy, disturb, interfere with, obstruct, or be offensive to others.”
The police officer went to the premises in question for the purpose of obtaining evidence against the place for any violation of law that might occur therein. He in fact obtained evidence of a *594violation of the Revised Statute known as the Volstead Act (41 U. S. Stat. at Large, 307, chap. 285, tit. 2) and charged him with this crime in the Federal court. It cannot be said that the acts of the defendant annoyed, or obstructed, or disturbed or were offensive to the police officer. The other persons in the premises were also served with and were drinking intoxicating liquor and there is no evidence that they were annoyed, disturbed, interfered with or offended by such acts. In fact it clearly appears from the record that the only crime committed by the defendant was a violation of a Federal statute known as the Volstead Act of which the magistrate had no jurisdiction (People v. Conti, 127 Misc. 244, 260), and for which as above stated the defendant was prosecuted in the Federal court.
Judgment of conviction appealed from reversed on the law and the facts.
All concur; present, Eernochan, Ch. J., McInerney and Herbert, JJ.
Reversing 126 Misc. 574, 762.