The interesting questions of law brought to our attention by the argument of counsel cannot now be considered by us for the reason that we are without jurisdiction to review the order appealed from. By it the judgment is reversed and a new trial granted, both on questions of fact and of law, and inasmuch as this court is limited by the Constitution *Page 604 to the review of questions of law, except where the judgment is of death, we cannot review such an order if there be any controversy whatever as to material facts. True, it has been held that we may look into the record for the purpose of determining whether there are controverted facts, or inferences to be drawn from conceded facts, tending to support a reversal upon the facts; and if they cannot be found, then, notwithstanding the form of the order, a question of fact is not actually involved, and this court will proceed to consider the questions of law presented by exceptions. (Otten v. Manhattan Ry. Co.,150 N.Y. 395; Hirshfeld v. Fitzgerald, 157 N.Y. 166.)
These cases provide for the only exception to the general rule that the form of the order of the Appellate Division is the guide by which this court determines whether a question of fact is involved, and that exception is only operative where there are neither facts nor inferences deducible from conceded facts in opposition to the decision of the trial court.
We are agreed that this record is not within the exception, and that the city of Albany must take the new trial ordered by the Appellate Division before it will be in a position to present its claims touching the matter in controversy to this court.
As justice may be promoted by a dismissal of this appeal, that course will be taken, reserving to some future occasion the application of the rule adopted in Snebley v. Conner (78 N.Y. 218), should counsel persist in taking their chances in this court in the hope that, at the most, only a dismissal will result, giving them two opportunities to persuade the court — one before the new trial ordered is taken, and one afterwards.
GRAY, O'BRIEN, HAIGHT, LANDON and WERNER, JJ., concur; CULLEN, J., not sitting.
Appeal dismissed, with costs to plaintiff, respondent. *Page 605