The opinion
Callahan, J.
(dissenting). The information charged that what defendant did was in violation of section 986 of the Penal Law, and that he was unlawfully engaged in book-making and receiving bets on the result of contingent events, to wit, the *514 results of two designated forms of policy. The facts specified in support of the charge show, however, the receipt of various sums of money as wagers on the drawing of numbers, which would seem to be a violation of both sections 974 and 986 of the Penal Law. Section 974 makes it a misdemeanor to receive any money in playing policy. Section 986, in addition to forbidding book-making and pool selling (which are not involved here), also makes it a misdemeanor to receive money bet or wagered by or for any other person (People v. Corbalis, 178 N. Y. 516, 521 ; People v. Goldstein, 295 N. Y. 61 ).
But assuming that the facts alleged as constituting the crime showed only a violation of section 974 or were more particularly proscribed by that section, and that the information was as incorrect in charging a violation of section 986 as it was in denominating the offense “ bookmaking ”, such errors would not be fatal. Under the circumstances, the specific facts alleged should control and show the crime for which the conviction was had. The crime designated in the accusatory or charging clause, insofar as it alleged “ bookmaking ” or stated that the offense was a violation of section 986 of the Penal Law, involved a mere misnomer (People v. Miller, 143 App. Div. 251 , affd. 202 N. Y. 618 ; People v. Valentine, 147 App. Div. 31 , affd. 205 N. Y. 556 ).
The evidence of the police officer, qualified as an expert, was to the effect that the conversations had in connection with the delivery of the moneys were in relation to wagers on mutual race horse policy. While this opinion stated the alleged ultimate nature of the transactions and did not explain the reasons for so designating them, it would seem to me to be sufficient, together with the other evidence, to support a finding that policy betting was involved. There was no cross-examination as to the basis of the opinion and no contradictory evidence offered. I vote to affirm.
Dore, J. P., and Van Voorhis, J., concur with Cohn, J.; Callahan, J., dissents in opinion in which Shientag, J., concurs.
Judgment reversed, the fine remitted and a new trial ordered.