
    The People of the State of New York, Respondent, v. William J. Robinson, Appellant.
    
      Appeal — by failing to move for dismissal at close of evidence defendant concedes that question of fact is presented, and Court of Appeals may not review decision of trial court.
    
    By failing to move at the close of the evidence for a dismissal of the proceeding defendant conceded that there was a question of fact to be determined by the court, and this court may not review its determination thereof.
    
      People v. Robinson, 202 App. Div. 836, affirmed.
    (Submitted January 10, 1924;
    decided January 18, 1924.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 17, 1922, which affirmed a judgment of the Court of Special Sessions convicting the defendant of selling an indecent book.
    
      George Gordon Battle for appellant.
    
      Joab H. Banton, District Attorney (Michael J. Driscoll of counsel), for respondent.
   Per Curiam.

We may not consider the question argued before us as to whether the book for the selling of which the defendant was convicted was obscene, lewd, lascivous, filthy, indecent or disgusting. By failing to move at the close of the evidence to dismiss the proceeding the defendant conceded that there was a question of fact to be determined by the court. (People v. Bresler, 218 N. Y. 567; People v. Bellavicini, 218 N. Y. 717.) The rulings of the trial court upon the exclusion of evidence were proper.

The judgment appealed from should be affirmed.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed:  