#### The People of the State of New York, Respondent, *v.*Alfred Mansi and James Enrich, Appellants.

First Department,

December 24, 1908.

Crime—disorderly conduct— Consolidation Act, section 1459, construed — acts constituting disorderly conduct — evidence — facts affecting punishment only.

In section 1459 of the Consolidation Act, permitting a magistrate to cause a person to be brought before him when it is shown by oath that he has “ been guilty of any *such*disorderly conduct as in the opinion of such magistrate tends to a breach of the peace,” the word “such” does not refer exclusively to the disorderly acts specified in the preceding section, 1458, but means any disorderly conduct such as. in the opinion of such magistrate, tends to a breach of the peace. The word “-such” is correlative with “as.”

Persons who, pretending that they had money which they wished changed, exhibited to the complainant a package supposed to contain money, with a request that he put his money and watch and chain into the package, are properly convicted of disorderly conduct under said section.

A magistrate may receive the unsworn statement of a police officer that the portrait of one accused of crime is in the Rogues’ Gallery, where it is admitted solely for the purpose of determining the sentence to be imposed, and not as bearing upon the defendant’s guilt.

Appeal by the defendants, Alfred Mansi and another, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York in favor of the plaintiff, rendered on the 23d day of January, 1908, affirming a judgment of the Magistrate’s Court of the city of Hew York rendered on the 6th day of December, 1907, convicting the defendants of disorderly conduct.

The following is the testimony of complainant, Reblin, a stone *387mason, in search of work at the time'he met defendants: “I was in search of work, and I met these two men. They said they had money on them and they wanted to change it, and then they asked me if I had any money on me. Then they brought me down in this neighborhood. Then I said to myself: ‘ These are probably not good people. I had better get away from them.’ They showed me a package supposed to contain money. I didn’t see any money, but they said: ‘ Put your money in this.’ There was nothing happened, but I' think they wanted to rob me. Q. Was this the package they showed you (shows witness package of paper done up in a handkerchief)? A. bio; they carried inside a paper. That paper there (points to paper in handkerchief). Q. That was nothing but a piece of paper wrapped up in a handkerchief ? A. I don’t know what was inside of it. Q. Did they say anything to you about, your watch and chain ? A. They said I should put all my money and my watch and chain and everything into the package, and give it to them. Q. And give it to them ? A. Yes, sir.”

*William Hawkins,*for the appellants.

*Robert C.*Taylor, for the respondent.

McLaughlin, J.:

The defendants appeal from a judgment convicting them of dis> orderly conduct. They were charged with violating the provisions of sections 1458 and 1459 of the Consolidation Act (Laws of 1882, chap. 410). The former section provides that a person is guilty of disorderly conduct that tends to a breach of the peace who shall commit certain offenses, and among others: *“*3. Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned,” and the latter provides: “ Whenever jt shall appear on oath of a credible witness before any police justice * * * that any person * * * has been guilty of any such disorderly conduct as in the opinion of such magistrate tends to a breach of the peace the said magistrate may cause the person so complained of to be brought before him to answer the said charge.”

The appellants contend that they were guilty of none of the acts specified in section 1458 and that section 1459 relates only to such *388acts; in other words, that the word “such” as used in the latter section refers only to the acts specified in the former section. I do not think the sections, when read together, are susceptible of this construction. The evident intent and meaning of section 1459 is “ any disorderly conduct *such as*in the opinion ” of the magistrate tends to a breach of the peace. The word “such” is correlative with “ as,” and if it had been intended by its use to refer to the acts set forth in section 1458 only, the word “ as ” would not have been used. The use of the word “ as ” without any punctuation after the word “ conduct ” shows that the word “ such ” is used only to anticipate the limiting clause commencing with “ as ” and not to refer to the preceding section.

This view is sustained by the *Case of the Twelve Commitments*(19 Abb. Pr. 394) where Daly, J., held that what is now section 1458 did not define the *only*acts which constitute disorderly conduct, and that section 1461 (originally enacted in 1833), which requires that a magistrate may require security for good behavior in cases of disorderly conduct tending in his opinion to a breach of the peace, was not limited by section 1458. If this construction be correct, then upon the uncontradicted facts the defendants were clearly guilty of disorderly conduct and the judgment convicting them of that crime is amply sustained by the evidence.

The only other point raised by the appellants is that unsworn testimony of a police officer to the effect that the photograph of one of the defendants was in the Pogues’ Gallery was admitted. It is perfectly obvious that the information thus obtained was elicited by the magistrate, not for the purpose -of determining whether the defendants were guilty of the crime charged, but solely for the purpose of determining what sentence ought to be imposed.

The judgment of conviction is right and should be affirmed.

Patterson, P. J., Laughlin, Houghton and Scott, JJ., concurred.

Judgment affirmed.