
    SUPREME COURT, APP. DIVISION—FOURTH DE-
    March 22, 1916.
    THE PEOPLE v. JAMES W. WALSH; THE PEOPLE v. FRED NEWELL; IMPLEADED WITH LAWRENCE ROSENTHAL, AND RICHARD GOODMAN.
    (172 App. Div. 266.)
    Dismissal of indictment—Order that matter be submitted to new GRAND JURY—APPEAL—PRACTICE.
    Where an indictment has been dismissed by the court on its own motion the defendant cannot take an independent appeal from a part of the order providing that the matter be submitted to a new grand jury even though the offense charged is a misdemeanor and on the dismissal is a bar even though the offense charged is a misdemeanor and the dismissal is a bar to another prosecution.
    It seems that should another action be commenced the effect of the prior dismissal of the indictment may be raised and determined upon the trial, and perhaps by a motion to set aside the indictment if another indictment is found.
    An order refusing to set aside an indictment may be reviewed upon an appeal from the judgment of conviction. The right of appeal is wholly statutory.
    Appeal by the defendant, James W. Walsh, in the first and second actions, and by the defendants Lawrence Rosenthal and another, in the third and fourth actions, from so much of an order of the Supreme Court, made at the Erie Criminal Term and entered in the Office of the clerk of the County of Erie on the 20th day of December, 1915, as directs that the cases of the defendants be resubmitted to the next grand Jury of Erie County for its action after the indictments had been dismissed in each case on the court’s own motion.
    
      Thomas L. Newton, for the Appellants.
    
      Wesley C. Dudley (Guy B. Moore of counsel) for the respondent.
   Kruse, P. J.:

The question of the propriety of the demurs of the indictments is not before us, and we, therefore, refrain from expressing any opinion thereon. What the defendants complain of is the direction contained in the order of dismissal that the matters be submitted to a new grand jury.

Chapter 7 of title 12 of part 4 of the Code of Criminal Procedure provides for the dismissal of a criminal action for want of prosecution upon the application of the defendant (§ 668). It also provides that the court may, either of its own motion or upon the application of the district attorney, order an action after indictment to be dismissed (§ 671), and that an order for the dismissal of the action as is provided in that chapter is a bar to another prosecution for the same offense if it be a misdemeanor (§ 673). It is also provided in another section (not contained in chapter 7 of title 12 of part 4) that an indictment must be set aside upon certain grounds therein named, and none others (§ 313).

The defendants urge that the dismissal was on the court’s own motion, and that the offense charged being a misdemeanor the order of dismissal constitutes a bar to another prosecution of the offense charged in the indictment so dismissed. The district attorney contends that the dismissal was not upon any ground covered by chapter 7 of title 12 of part 4 or by section 313 or any other provision of the Code of Criminal Procedure, and was not in fact upon the court’s own motion; that the dismissal was upon the broad ground that the defendants’ constitutional rights had been invaded by the way in which the indictment was brought about; that the power of the court to dismiss the indictment upon that ground is not conferred by any statute (People v. Glen, 173 N. Y. 395), and, therefore, not within the provisions of section 673 of the Code of Criminal Procedure.

If the indictment was in fact dismissed upon the court’s own motion, and if every such dismissal is covered by section 673, irrespective of the grounds of the dismissal, clearly another action for the same offense is barred.

We have, however, reached the conclusion that this appeal is premature and unauthorized, and that the motion of the district attorney to dismiss the appeal should be granted. It is to be observed that the original indictment has been dismissed. No criminal action is now pending. While the provision for resubmitting the matter to another grand jury is contained in the order dismissing the indictment, it really has no connection with that action. It does not initiate a new action, although if the defendants’ contention is correct the dismissal may bar another prosecution.

Should another action be commenced the effect of such dismissal may be raised and determined upon the trial, and perhaps upon a motion to set aside the indictment if another indictment is found. It has been held that an order refusing to set aside an indictment may be reviewed upon appeal from the judgment of conviction. (People ex rel. Hummel v. Trial Term, 184 N. Y. 30.) The right of appeal is statutory, only such appeals may be taken as the statute permits. This right may be taken away entirely. It is not a constitutional right guaranteed by the Constitution. (People v. Trezza, 128 N. Y. 529; People v. Priori, 163 id. 99; Leake v. Hartman, 137 App. Div. 451; affd., 202 N. Y. 605; Matter of Montgomery, 126 App. Div. 72; appeal dismissed in Court of Appeals, 193 N. Y. 659; People v. Hyde, 146 App. Div. 633.) The views of the judges as to the right of a defendant in a criminal action to prosecute an independent appeal from a preliminary or intermediate order have not always been in entire accord, as will be seen by reading the opinions in the cases above cited, and others therein referred to. Such appeals have been entertained where no other remedy for reviwing the order seemed available (People v. Butts, 121 App. Div. 226; People v. Sarvis, 69 id. 604; People v. Jackson, 114 id. 697) ; but this appeal is not within that class, since ample provision is made for reviewing the question upon an appeal from the judgment should the defendants be hereafter convicted.

The appeals should be dismissed.

All concurred.

In each case appeal dismissed.  