
    The People of the State of New York, Appellant, v. Joseph A. McCann, Respondent.
    
    First Department,
    December 7, 1934.
    
      John C. McDermott of counsel [William Copeland Dodge, District Attorney], for the appellant.
    
      James D. C. Murray of counsel [J. Richard Davis and Max Fruchtman with him on the brief; James D. C. Murray, attorney], for the respondent.
    
      
       Affg. 151 Misc. 792.
    
   Martin, J,

The authorities on the subject here presented support the contention of the respondent that the indictment is defective. It appears to have been based upon sections of the Penal Law which do not apply. The fact that this indictment must be dismissed does not relieve the district attorney of his duty to prosecute if he finds that other sections of the Penal Law have been violated.

The order should be affirmed.

Finch, P. J., Merrell, O'Malley and Untermyer, JJ., concur.

Order affirmed.  