
    The People of the State of New York, Appellant, v. Dominico Calabur, Respondent.
    Chimes—Appeal — Order of Reversal upon Ground That Justice Required a New Trial Not Review able. An order of reversal in a criminal case, that does not upon its face exclude the possibility that it was based upon an examination of the facts or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals.
    
      People v. Oalabur, 91 App. Div. 539, appeal dismissed.
    (Argued May 16, 1904;
    decided May 20, 1904.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 11, 1904, which reversed a judgment of the Kings County Court entered upon a verdict convicting the defendant of the crime of assault in the first degree and granted a new trial.
    
      John F. Clarice, District Attorney (Robert U. Roy of counsel), for appellant.
    
      Francis L. Corrao for respondent.
    This court has no jurisdiction to review this appeal, for the reason that the order appealed from fails to state upon what ground or for what reason the judgment of conviction was reversed and a new trial granted. (People v. Boas, 92 N. Y. 561 ; People v. Poucher, 99 N. Y. 610 ; People v. Conroy, 97 N. Y. 72 ; People v. Stevens, 104 N. Y. 667 ; People v. Camp, 139 N. Y. 87 ; People v. Malone, 169 N. Y. 569 ; People v. Miller, 169 N. Y. 339 ; People v. D'Argencour, 95 N. Y. 631.)
   Per Curiam,.

Although a previous motion to dismiss the appeal in this case was denied upon the theory intimated, but not decided, in People v. D'Argencour (95 N. Y. 624), to the effect that if it appeared, that the discretion of the Appellate Division had been abused, the question might be considered upon appeal to this court, yet, when we examine other decisions where that question was actually involved, we find that it has been uniformly held that an order of reversal in a criminal case that does not, upon its face, exclude the possibility that it was based upon an examination of the facts or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals. (People v. O'Brien, 164 N. Y. 57 ; People v. Grossman, 168 N. Y. 47 ; People v. Mitchell, 142 N. Y. 639 ; People v. Stevens, 104 N. Y. 667 ; People v. Conroy, 97 N. Y. 62 ; People v. Boas, 92 N. Y. 560 ; Harris v. Burdett, 73 N. Y. 136.)

Therefore, in view of the latter" decisions, which must be regarded as controlling and adverse to the dictum in the H'Árgencour case, and after a full consideration of the case at bar, we have reached the conclusion that this court has no jurisdiction to review the order of the Appellate Division reversing the judgment of the trial court upon the ground that justice .required a new trial, as that determination rested solely in the discretion of the court below and involved no errors of law which this court can review.

The appeal should be dismissed.

Parker, Cli. J., Gray, O’Brien, Martin, Cullen and Werner, JJ., concur; Haight, J., absent.

Appeal dismissed.  