Order reversed and. the information dismissed. The defendant’s guilt was not established beyond a reasonable doubt. We thoroughly agree with District Attorney Hogan’s frank and commendable concession to that effect and with his conclusion that “ The judgment appealed from should be reversed”. In this view, we do not reach the constitutional issue posed by the defendant.

Concur: Chief Judge Fuld and Judges Burke, Bergan and Gibson. Judges Scileppi, Breitel and Jasen dissent and vote to affirm upon the grounds that defendant’s guilt was established beyond a reasonable doubt and section 240.25 (subd. 2) of the Penal Law is constitutional. We think the concession by the District Attorney was improvident, holding that in the context of this event the words used by the defendant were intended to provoke a person charged with the responsibility of maintaining prder and demonstrating his capacity to do so.