Opinion
Argued October 18, 1956
Decided November 15, 1956
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN P. DONOHOE, J.
Joseph F. Gagliardi, District Attorney ( Douglas L. McGuire of counsel), for appellant.
Mortimer C. O'Brien, Jr., for respondent.
This court may entertain an appeal from an order of the Appellate Division reversing a judgment of conviction and ordering a new trial only if such reversal be on the law alone. (See People v. Moskowitz, 289 N.Y. 69; People v. Redmond, 225 N.Y. 206, 208; see, also, Cohen and Karger, Powers of the New York Court of Appeals, p. 754.) In the case before us, the order explicitly recites that the reversal was "on the facts", as well as on the law, and, accordingly, we have no alternative but to dismiss the appeal.
The appeal should be dismissed.
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.
Appeal dismissed.