The order of reversal states merely that it was made on questions of law. It does not state that the court has considered the questions of fact or exercised the discretion which the statute confers upon it. We have decided that this court will not review an order of reversal in such a case, unless it shows that the court has exercised its 'discretionary powers. See People v. Boas, 92 N. Y. 560-564; Same v. Conroy, 97 N. Y. 62-72; Harris v. Burdett, 73 N. Y. 136. Although the court in the present case puts its decision upon a question of law, we cannot say it would not have reached the same result had it exercised its discretion, and entertained a different opinion on the question of law. The prisoner was entitled to a review of the facts, and the exercise of the discretionary power of the court, which he might lose if the cáse should be disposed of solely on a question of law.
The case should, therefore, be remitted to the general term to consider the questions of fact, and exercise its discretion.
All concur.