I concur. In Dreiser v. Lane Co. (183 App. Div. 773) this court after reviewing People v. Muller (32 Hun, 209; affd., 96 N. Y. 408) and United States v. Bennett (16 Blatchf. 338) said: “ It seems, therefore, to have been settled authoritatively *249that whether a publication is obscene or not is a question of fact.”
While it is true that upon the trial of the plaintiff for the sale of the book complained of he was acquitted, and, therefore, that question of fact must have been decided in his favor, yet the question still remains whether the defendant had probable cause for prosecution, and, under the facts in this case, whether or not there was probable cause depended upon the character of the book in question. As in the original prosecution, that was a question of fact which had to be determined by the jury and could not be disposed of by the court as a matter of law, nor upon the opinions of expert or other witnesses, but by an inspection of the book itself. The refusal to allow it to be submitted to the jury and the direction by the court that theie was no probable cause constitute error which requires a reversal of the judgment and a new trial.