The authorities on the subject here presented support the contention of the respondent that the indictment is defective. It appears to have been based upon sections of the Penal Law which do not apply. The fact that this indictment must be dismissed does not relieve the district attorney of his duty to prosecute if he finds that other sections of the Penal Law have been violated.

The order should be affirmed.

Finch, P. J., Merrell, O'Malley and Untermyer, JJ., concur.

Order affirmed.