The only reason why I vote to affirm is because the Court of Appeals has specifically stated in clear and direct language that the trial court has no unqualified discretion in regard to discharging a jury. Its discretion depends “ upon a prior declaration by the jury of their ability or inability to agree.” (People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138, 150).
Whether the Court of Appeals would now prefer a less stringent procedure and reject its earlier position because it would ‘ ‘ elevate the question to the rank of a magic formula ” as is stated by the dissent, is for that court to decide and not us.