The temporary injunction was granted upon conflicting affidavits. The order was reversed by the Appellate Division "as a matter of law and not in the exercise of any discretion."
In permitting the appeal to this court, the Appellate Division certified the following question: "Is the Legal Daily, referred to in the moving papers, a paper which the defendant city and its officers are authorized to designate as the official paper of the city, in which legal notices may be published as provided in the charter of said city?" *Page 516
On the record the question whether the city and its officers are authorized to designate the Legal Daily as the official paper of the city is one of fact.
No certificate of the Appellate Division can clothe the Court of Appeals with jurisdiction to review a question of fact or one involving the exercise of discretion. (Matter of Westerfield,163 N.Y. 209; Lewin v. Lehigh Valley R.R. Co., 169 N.Y. 336;Palmer v. State of New York, 217 N.Y. 601; Schieffelin v.Hylan, 229 N.Y. 633.)
The appeal should be dismissed, with costs.
HISCOCK, Ch. J., McLAUGHLIN and CRANE, JJ., concur with ANDREWS, J.; CARDOZO and POUND, JJ., concur with CHASE, J.
Order reversed, etc.