
    SUPREME COURT—APP. DIVISION—THIRD DEP.,
    May 18, 1906.
    THE PEOPLE v. JAMES DUNDON.
    (113 App. Div. 369.)
    (1). Appeal—Right to Appeal Wholly Statutory—Code Grim. Proc. §518.
    Although an indictment has been dismissed by the trial court upon the erroneous ground that on the presentation to the grand jury of depositions of witnesses without the state proof of the absence of such witnesses from the State was made to the grand jury rather than to the court, no appeal lies by the People to the Appellate Division.
    Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 20th day of March, 1906, dismissing an indictment against the defendants.
    
      Roger P. Clark, District Attorney, for the appellant.
    
      Frank S. O'Neil, for the respondents.
   Cochrane, J.:

The defendants were indicted for the crime-of grand larceny in the second degree. In the investigation of the charge resulting in such indictment the grand jury received the depositions of two witnesses who were at the time absent from the State. These depositions had been properly taken as required by subdivision 3 of section 8 of the Code of Criminal Procedure. And upon satisfactory proof to the court as required by said last-mentioned provision that the witnesses could not with due diligence be found in the State, their depositions became proper evidence before the grand jury. (Code Crim. Proc. § 255.) Sufficient proof of the absence from the State of such witnesses was made before the grand jury. The trial court, however, dismissed the indictment because such proof should have been made to the justice holding the term rather than to the grand jury

An appeal to the Appellate Division of the Supreme Court may be taken by the People in the following cases and no other: 1. Upon a judgment for the defendant on a demurrer to the indictment. 2. Upon an order of the court arresting the judgment.” (Code Crim. Proc. § 518.) The right of appeal in criminal cases is statutory only. (People v. Carroll, 105 App. Div. 147.) It follows that the order in question is not appealable.

It is stipulated that the respondents waive any question as to the right of the People to appeal from this order. But consent cannot give jurisdiction to an appellate court. (McMahon v. Rauhr, 47 N. Y. 67, 72; Wilmore v. Flack, 96 id. 519.)

We think the order in question is erroneous, but for the reasons above stated we are not at liberty to entertain the appeal therefrom.

All concurred.

Appeal dismissed.  