The question certified to us by the Appellate Division is not in such a form as to enable us to answer it. We are asked to say whether the service of the judgment was sufficient to start running the time within which the state was required to appeal. The answer to that question depends upon the choice to be made between conflicting versions of the transaction. If we accept as correct the affidavits submitted by the claimants, we may be led to one answer; if we accept as correct the affidavits submitted by the state, we may be led to another. We are without power to decide a question, even though certified to us by the Appellate Division, if the answer makes it necessary to pass upon a question of fact (Matter of Westerfield, 163 N.Y. 209;Neresheimer v. Smyth, 167 N.Y. 202, 207).
The appeal should be dismissed, without costs to either party.
WILLARD BARTLETT, Ch. J., HISCOCK, HOGAN, CARDOZO and SEABURY, JJ., concur; CHASE and COLLIN, JJ., dissent, and vote for reversal.
Appeal dismissed.