People v. . Calabur

71 N.E. 2, 178 N.Y. 463, 16 Bedell 463, 1904 N.Y. LEXIS 733

Opinion

Per Curiam,.

Although a previous motion to dismiss the appeal in this case was denied upon the theory intimated, but not decided, in People v. D'Argencour (95 N. Y. 624), to the effect that if it appeared, that the discretion of the Appellate Division had been abused, the question might be considered upon appeal to this court, yet, when we examine other decisions where that question was actually involved, we find that it has been uniformly held that an order of reversal in a criminal case that does not, upon its face, exclude the possibility that it was based upon an examination of the facts or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals. (People v. O'Brien, 164 N. Y. 57 ; People v. Grossman, 168 N. Y. 47 ; People v. Mitchell, 142 N. Y. 639 ; People v. Stevens, 104 N. Y. 667 ; People v. Conroy, 97 N. Y. 62 ; People v. Boas, 92 N. Y. 560 ; Harris v. Burdett, 73 N. Y. 136.)

Therefore, in view of the latter" decisions, which must be regarded as controlling and adverse to the dictum in the H'Árgencour case, and after a full consideration of the case at bar, we have reached the conclusion that this court has no jurisdiction to review the order of the Appellate Division reversing the judgment of the trial court upon the ground that justice .required a new trial, as that determination rested solely in the discretion of the court below and involved no errors of law which this court can review.

The appeal should be dismissed.

Parker, Cli. J., Gray, O’Brien, Martin, Cullen and Werner, JJ., concur; Haight, J., absent.

Appeal dismissed.