It is impossible for this court to pass upon the important questions of law involved in this case unless they shall be brought up hereafter by the defendant's appeal from a judgment of affirmance against him *Page 577 after a new trial conducted in accordance with the opinion of the Appellate Division. We are obliged to dismiss the present appeal upon the authority of Wright v. Smith (209 N.Y. 249), because there was an appeal to the Appellate Division from an order denying a motion for a new trial as well as an appeal from the judgment; and while the judgment was reversed the order of reversal does not show an affirmance so far as the facts were concerned. This is essential to give the Court of Appeals jurisdiction upon an appeal of this character.
The appeal should be dismissed, with costs.
WILLARD BARTLETT, Ch. J., WERNER, CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur; MILLER, J., not sitting.
Appeal dismissed.