The appellant was tried and convicted in the Magistrates’ Court of violating subdivision 11 of section 722 of the Penal Law. The complaint follows:
“ John J. Gorman, a policeman of the City of New York, attached to the 68th Squad, being duly sworn, deposes and says, that on the 7th day of October, 1931, at 445 Bay Ridge Avenue in the County of Kings, the City of New York (a city of over one million inhabitants), and State of New York, William Bailey did commit the offense of disorderly conduct in violation of the Penal Law, Section 722, Sub-division 11 for the reason that at the time and place aforesaid, the said defendant did unlawfully and with intent to provoke a breach of the peace and whereby a breach of the peace might be occasioned, the deponent says that the defendant is engaged in an illegal occupation and the defendant bears an evil reputation and defendant frequents unlawful resorts, defendant being in the said premises at about 1.30 a. m.
“ Wherefore, deponent prays that the said defendant be dealt with according to law.”
The People have failed to prove that the defendant was engaged in an illegal occupation; or that he frequented an unlawful resort. There is some evidence that he bore an evil reputation; but in order *849to convict him of this, and in accordance with statute, the People must go further and prove in addition to evil reputation that he consorted with thieves and criminals or frequented an unlawful resort.
Judgment reversed on the law and facts, and defendant discharged.
All concur; present, Salomon, P. J.,McInerney and Herbert, JJ.