Bowlby v. McQuail

148 N.E. 757, 240 N.Y. 684, 1925 N.Y. LEXIS 928

Opinion

Per Curiam.

The plaintiffs moved under Civil Practice Rules 103, 104, 109, 112, 113, “ and generally,” to strike out an entire answer and for summary judgment. The motion was denied and on appeal to the Appellate Division the order was affirmed, permission given to appeal to this court and certifying thirteen questions.

The order which we are asked to review is an intermediate one. The only.power this court has to review such an order is by virtue of the permission granted by the Appellate Division on the questions certified. (Civ. Prac. Act, § 588, subd. 3.) The questions which are certified limit the power of this court on review to answer such questions and no others. (Grannan v. Westchester Racing Association, 153 N. Y. 449.)

If the answers to the questions certified will not be decisive of the appeal, of if they aré in such form that they cannot be answered at all, or if in order to answer them this court must determine a question of fact, then the appeal will not be entertained. (Schieffelin v. Hylan, 229 N. Y. 633.) This is precisely the situation here. The answers to the questions certified will not be decisive of the appeal. Some of them cannot be answered at all and some in order to answer them require this court to determine a question of fact which the court has no power to do.

The appeal, therefore, must be dismissed, with costs.

His cock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., not voting; Lehman, J., dissenting.

Appeal dismissed.