majority">Putnam, J.:

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, *370143 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. Grim. 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.

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