
    Charles H. Caldwell, Appellant, v. The City of New York, Respondent.
    Appeal—when order of reversal by the Appellate Division must show an affirmance as to facts in order to give Court of Appeals jurisdiction to review.
    Where an appeal taken to the Appellate Division from a judgment and also from an order denying a motion for a new trial has resulted in a reversal, it is essential that the order of reversal show an affirmance as to the facts in order to give the Court of Appeals jurisdiction to review.
    
      Caldwell v. City of New York, 148 App. Div. 304, appeal dismissed.
    (Argued January 20, 1914;
    decided February 10, 1914.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1911, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for an alleged breach of contract.
    
      Arthur D. Truax and George J. McDonnell for appellant.
    
      Archibald JR. Watson, Corporation Counsel (Terence Farley and Clarence L. Barber of counsel), for' respondent.
   Per Curiam.

It is impossible for this court to pass upon the important questions of law involved in this case unless they shall be brought up hereafter by the defendant’s appeal from a judgment of affirmance against him after a new trial conducted in accordance with the opinion of the Appellate Division. We are obliged to dismiss the present appeal upon the authority of Wright v. Smith (209 N. Y. 249), because there was an appeal to the Appellate Division from an order denying a motion for a new trial as well as an appeal from the judgment; and while the judgment was reversed the order of reversal does not show an affirmance so far as the facts were concerned. This is essential to give the Court of Appeals jurisdiction upon an appeal of this character.

The appeal should he dismissed, with costs.

Willard Bartlett, Oh. J., Werner, Chase, Collin, Cuddebacic and Hogan, JJ., concur; Miller, J., not sitting.

Appeal dismissed.  