Second Department, April, 1921. JENKS, P. J. (dissenting): [Vol. 196 I dissent and vote to modify the order in so far as it strikes out paragraph or subdivision V of defendant's answer to the amended complaint. (See Douglass v. Phenix Ins. Co., 138 N. Y. 209; Bulova v. Barnett, Inc., 193 App. Div. 167 et seq.) Order affirmed, with ten dollars costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES WEIN and SAMUEL WEIN, Appellants. Second Department, April 15, 1921. Crimes - information charging assault in third degree - conviction of disorderly conduct Code of Criminal Procedure, section 445, applicable to prosecution by information disorderly conduct included in assault - jurisdiction not lost by dismissal of assault charge. Section 445 of the Code of Criminal Procedure, providing, in effect, that under an indictment the defendant may be convicted of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, is applicable to prosecutions by information. Disorderly conduct as defined by section 720 of the Penal Law is included within the crime of assault in the third degree, and, therefore, one charged in an information with assault in the third degree may be convicted of the crime of disorderly conduct. The court did not lose jurisdiction of the case by dismissing the assault charge. APPEAL by the defendants, Charles Wein and another, from an order of the County Court of the county of Westchester, entered in the office of the clerk of said county on the 8th day of December, 1919, affirming a judgment of a Court of Special Sessions before Malcom Merritt, assistant police justice of the village of Port Chester, rendered on the 14th day of August, 1919, convicting the defendants of the crime of disorderly conduct and fining each five dollars. Benjamin I. Taylor, for the appellants. Lee Parsons Davis, District Attorney (Arthur Rowland, Assistant District Attorney, with him on the brief], for the respondent. App. Div. 368] Second Department, April, 1921. The information charged defendants with the crime of assault in the third degree. The justice (sitting as a Court of Special Sessions) at the close dismissed the charge of assault, but found defendants guilty of disorderly conduct, and imposed a fine. Defendants have raised the point that disorderly conduct is not a degree of assault, but is a separate and distinct offense, and not a crime necessarily included in that charged in the information. (See People v. Adams, 52 Mich. 24.) Assault in the third degree is committing an assault not amounting to assault in the first or second degree. (See Penal Law, § 244.) * * * The crime of disorderly conduct of which defendants were found guilty, is thus defined: Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor." (Penal Law, § 720.) Under an indictment, one may be convicted of any crime, the commission of which is necessarily included in that with which he is charged in the indictment; that is, a constituent offense. (Code Crim. Proc. § 445; People v. Colburn, 162 App. Div. 651.) It has not before been questioned that the provisions of section 445 of the Code of Criminal Procedure also apply to prosecutions by an information. The information performs the same office as an indictment in a superior court. (Shappee v. Curtis, 142 App. Div. 155.) No new rule of law was established when section 445 of the Code of Criminal Procedure was enacted. (See 2 R. S. 702, § 27, regarding different degrees of same offense; now Code Crim. Proc. § 444.) These sections are declaratory of the common law. (People v. Miller, 143 App. Div. 251; affd., 202 N. Y. 618.) The facts alleged in the information would constitute the crime of disorderly conduct. They were sufficient to sustain a conviction for such offense. (People v. Miller, APP. Div.-VOL. CXCVI. 24 Second Department, April, 1921. [Vol. 196 143 App. Div. 251.) The argument that the court here lost jurisdiction by dismissal of the assault charge is of no merit. It is elementary that a finding of a lesser offense operates of itself as an acquittal of the higher offense. (Whart. Crim. Law, § 33.) I, therefore, advise that this conviction for disorderly conduct be affirmed. MILLS, RICH, BLACKMAR and KELLY, JJ., concur. Judgment of conviction of the County Court of Westchester county affirmed. In the Matter of the Application of THE CITY OF NEW YORK, Appellant, Relative to Acquiring Title, etc., for the Purpose of Opening and Extending Ashland Place, from Fulton Street to Flatbush Avenue, in the Eleventh Ward, Borough of Brooklyn, City of New York. REALTY ASSOCIATES and Others, Respondents. Second Department, April 15, 1921. Municipal corporations - eminent domain property of city of New York taken for street purposes damages order appointing commissioners stating that city was not to have substantial damages nullified by later order city entitled to compensation where its property is taken for street purposes O Greater New York charter, § 995, applied. Where, in proceedings to acquire property for street purposes which the city of New York held in fee absolute, the order granting the application for the appointment of commissioners of estimate and a commissioner of assessment contained a condition that the city would assert no claim for damages, said condition was nullified, where subsequently, upon reargument at the request of the city on the ground that the city intended to claim substantial damages, the application was granted unconditionally and the court made, in the usual unconditioned form, the appropriate order appointing the commissioners from which an appeal was not taken. It was within the fair discretion of the commissioners to adopt the final lowest estimate of the city's expert as to the amount of damage that the city would suffer by the taking of said property for street uses. The question as to the right of the city to receive compensation for the property which had been previously taken in its behalf by the Public Service Commission for a subway cannot now be raised, since no appeal was taken from the order appointing the commissioners. App. Div. 370] Second Department, April, 1921. Moreover, by virtue of section 995 of the Greater New York charter where any lands of the city shall be required for any of the purposes recited, which include a street user, the city is entitled to be compensated the same as any other owner or proprietor of land under like circumstances. JENKS, P. J., and RICH, J., dissent, with opinion. APPEAL by the petitioner, The City of New York, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 7th day of October, 1919, denying the petitioner's motion to confirm the supplemental and amended report of the commissioners herein and referring the matter as to damage parcel No. 1-A to new commissioners for consideration and report. Patrick S. Mac Dwyer [John P. O'Brien, Corporation Counsel, with him on the brief], for the appellant. Edwin L. Snedeker, for the respondent Realty Associates. Herbert G. Andrews, for the respondents Voorhees and others. MILLS, J.: This matter has had a long and interesting history. The premises affected constitute a strip of land, twenty-five feet wide on the westerly side of Ashland place, extending from Fulton street on the north to Hanson place on the south in the borough of Brooklyn, the same being taken so as to widen Ashland place from fifty feet to seventy-five feet. Prior to the institution of this proceeding the Public Service Commission had, by appropriate proceedings, acquired title to the premises for the purpose of constructing a subway beneath them as a part of the city's system of rapid transit, said title vesting in the city for that purpose on November 28, 1910. The strip so taken constituted the front portions of several lots abutting on Ashland place on its west side, and also of two lots fronting on the southerly side of Fulton street, the former being in that proceeding designated as parcels Nos. 1-32, and the latter as parcels Nos. 33 and 34. Parcels Nos. 1-33 were so taken in fee, but subject to certain easements in favor of the balance of the lots from which they were so taken. Those easements were in substance the perpetual right to light, air and access, 66 subject, however, in the event that the said Second Department, April, 1921. [Vol. 196 parcels of land shall at any time be lawfully made a portion of Ashland Place or otherwise used for the purposes of a public street, to such reasonable uses and such reasonable rules and regulations established in pursuance of law by the proper public authorities as would be lawful and proper if said parcels of land had been originally acquired in fee by the City of New York in trust for the purposes of a public street," while parcel No. 34, being the corner at the intersection of Fulton street and Ashland place, was so taken in fee absolute without any easement reservation. Thereafter, on June 1, 1911, the board of estimate and apportionment instituted proper proceedings to widen Ashland place as above stated. On January 8, 1915, that board passed the appropriate resolution for acquiring title to that strip, viz., "a title in fee in trust for street purposes in such premises, subject to the right of The City of New York to construct, maintain and operate a subway for rapid transit purposes under said premises." Under authority of the resolutions of that board, the city's law department made due application to this court at the Kings Special Term before Mr. Justice KELLY for the appointment of commissioners of estimate and a commissioner of assessment in that matter. That application was opposed by certain property owners, including the respondent Voorhees, upon the ground that the city's then present title was sufficient to warrant the designed street user and that, therefore, no further condemnation was needed. Mr. Justice KELLY granted the application with a memorandum which contained this statement, viz.: "The order to contain recital that the city will assert no claim for damages; that the matter be heard and finally determined by the commissioners in not more than three sessions; " but before the order was made the city moved for a reargument upon affidavits showing that it did purpose to claim a substantial damage award for the parcel at the corner of Fulton street and Ashland place, which the city held in fee absolute. Upon that reargument the court granted the application unconditionally, and made in the usual unconditioned form the appropriate order appointing the commissioners; and from that order no appeal was taken. Upon the hearings before the commissioners the city claimed substantial damage only for the taking of damage parcel No. 1-A, |