
    People of the State of New York, Respondent, v. Louis Lukowsky, Appellant.
    (Court of General Sessions of the Peace in and for the County of New York,
    March, 1916.)
    Disorderly conduct — when conviction for, reversed — police — arrest — criminal law.
    Where a magistrate finds that defendant did not interfere with pedestrians at a railroad station, as sworn to by the police officer who arrested him, his conviction for disorderly conduct in calling the officer a vile name on the way to the station house will be reversed.
    Any remark however insulting addressed by a defendant while under lawful arrest to the police officer making the arrest, in the absence of proof that-the remark was made in a loud voice or public manner, cannot be deemed disorderly conduct tending to or intended to provoke a breach of the peace.
    Appeal from a judgment of conviction entered by a city magistrate, convicting the defendant of disorderly conduct in that he used threatening, abusive and insulting behavior to an officer, provoking a breach of the peace, and whereby a breach of the peace might be occasioned.
    Andrew J. Smith, for appellant.
    James E. Smith (Edward Swann, District Attorney), for respondent.
   Nott, J.

The defendánt was convicted upon the testimony of a police officer who swore that the defendant was annoying and interfering with passengers by stopping them and preventing their passage in front of the Grand Central depot, where the defendant was apparently soliciting orders as a porter. He testified that after he arrested the defendant, while taking him to the station house, the defendant applied a vile name to the officer. The defendant on testifying denied all the allegations made by the officer. The magistrate thereupon said: “ I am satisfied of one thing: that you did call him the name he said you did. I find you guilty. I am not satisfied that you blocked the free passage way of pedestrians.”

The magistrate’s determination- of the facts I regard as conclusive as he saw the witnesses and could determine their credibility. He has found that the defendant did not interfere with pedestrians, but has convicted him because he used an insulting remark to the officer after he had taken him into custody.

I do not think that any remark, however insulting, addressed, while under lawful arrest, to the police officer making the arrest (there being no evidence that the remark was made in a loud voice or public manner) can be deemed disorderly conduct tending to, or intended to provoke, a breach of the peace. The law does not contemplate that the officer would assault a person in his custody by reason of a remark addressed to him, yet in no other way could the remark tend to provoke a breach of the peace. For this reason the conviction must be reversed.

As the magistrate has found that the other allegations against the defendant were not proved, he cannot be tried upon them. The complaint must be dismissed, and the fine remitted.

Judgment reversed.  