
    The People of the State of New York, Appellant, v. Percy Campbell Reed and Richard F. Roberts, Respondents.
    Second Department,
    September 14, 1937.
    
      George Morton Levy, for the motion.
    
      Martin W. Littleton, District Attorney of Nassau County [Philip Huntington, Assistant District Attorney], opposed.
   Per Curiam.

The court dismissed the fourth and fifth counts of the indictment, as to which no question is raised. After both sides had submitted testimony and rested, the indictment as to the other counts was dismissed upon the ground that, assuming the facts showed defendants had committed acts prohibited by section 986 of the Penal Law, they were, nevertheless, exempt from criminal liability. The court held that under that section there is an exception to such liability where other penalty is provided; that such other penalty is provided for in sections 990 and 994 of the Penal Law, and the facts disclosed that defendants’ acts were within the exception. This ruling that under the facts defendants were not liable as a matter of law was tantamount to a direction of a verdict. (People v. Ledwon, 153 N. Y. 10.) From such determination an appeal does not lie. (Code Crim. Proc. § 518, subd. 4.)

This court is not called upon to decide if the operations of the defendants were in violation of section 986 of the Penal Law, although it has expressed its views thereon in Reed v. Littleton (249 App. Div. 310); nor to determine the correctness of the court’s ruling that, under the facts disclosed, defendants are exempt from criminal liability under the exception stated in section 986 of the Penal Law.

The motion to dismiss the appeal should be granted and the appeal dismissed upon the ground that the order or judgment of the County Court of Nassau county dismissing the indictment is not appealable.

Present — Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ.

Motion to dismiss appeal granted and appeal dismissed.  