People Ex Rel. Drake v. . Andrews

89 N.E. 1095, 196 N.Y. 538, 1909 N.Y. LEXIS 911

Opinion

Per Ouriam.

However clear our judgment may be on the legal question involved on this appeal we think that the order of the Appellate Division in its present form is not the subject of review by us. This view is not predicated on the decision of this court in People ex rel. N. Y. Society, etc., v. Gilmore (88 N. Y. 626), because since that decision the Code of Criminal Procedure (§ 519) has been amended so as to authorize appeals to this court from a final determination affecting a substantial right of defendant, but because there is a question of fact in the case. To render a review by this court effective the order of the Appellate Division should show on its face that the order of the trial court was reversed solely on the law.

The appeal must, therefore, be dismissed unless the appellants within thirty days obtain from the Appellate Division a modification of its order, so as to show that the order of the trial court was reversed solely on the law, and in case of such modification being made the appeal may be again submitted to this court without further argument, unless the parties otherwise elect.

Cullen, Ch„ J., Edward T. Bartlett, Haight, Vann, Willard Bartlett, IIisoock and Chase, JJ., concur.

Appeal dismissed.