Opinion
Argued March 1, 1948
Decided March 18, 1948
Appeal from the Supreme Court, Appellate Division, First Department, EDER, J.
Alexander Rothstein, appellant in person.
William M. Kilcullen for respondent.
Questions of fact are presented by the record as to whether appellant improperly abandoned the case or was justifiably dismissed. Since the Appellate Division order fails to make the specifications required by section 602 of the Civil Practice Act, we are compelled to presume that questions of fact were not considered and to "treat the Appellate Division order as being a determination on the law only." (See People ex rel. Sheffield Farms Co., Inc., v. Lilly, 295 N.Y. 354, 356; see, also, Tufts v. Stolz, 297 N.Y. 673.) So regarded, the Appellate Division order cannot be sustained. The order is accordingly reversed, without costs, and the matter remitted to the Appellate Division "for determination upon the questions of fact raised in that court" (Civ. Prac. Act, § 606).
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.
Order reversed, etc.