Opinion
Argued January 18, 1939
Decided February 21, 1939
Appeal from the Supreme Court, Appellate Division, Second Department.
Frank Serri for appellant. William F.X. Geoghan, District Attorney ( Edward H. Levine of counsel) for respondent.
The defendant moved to dismiss the information "on the ground that the facts stated therein do not constitute a violation of section 114 of the Workmen's Compensation Law of the State of New York nor a crime under any law of this State." We think this motion was the equivalent of a demurrer to the information. (Code Crim. Proc. §§ 323, subd. 2, 324.) The Presiding Justice of the Court of Special Sessions entered upon the information the following indorsement: "Motion to dismiss denied." Since we think this entry was sufficient as an order disallowing the demurrer (Code Crim. Proc. § 326), the actual decision thereby made must be reviewed on this appeal. (Code Crim. Proc. §§ 485, subd. 2, 517.)
We hold that the facts stated in the information constitute the misdemeanor defined by section 114 of the Workmen's Compensation Law (Cons. Laws, ch. 67).
The judgment should be affirmed.
O'BRIEN, LOUGHRAN, FINCH and RIPPEY, JJ., concur; CRANE, Ch. J., LEHMAN and HUBBS, JJ., dissent.
Judgment affirmed.