People v. Calabur

Decision Date20 May 1904
PartiesPEOPLE v. CALABUR.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Dominico Calabur was convicted of assault in the first degree, and from an order of the Appellate Division of the Supreme Court (87 N. Y. Supp. 121) reversing the judgment, the people appeal. Dismissed.

John F. Clarke, Dist. Atty. (Robert H. Roy, of counsel), for the people.

Francis L. Corrao, for respondent.

PER CURIAM.

Although a previous motion to dismiss the appeal in this case was denied upon the theory intimated, but not decided, in People v. D'Argencour, 95 N. Y. 624, to the effect that, if it appeared that the discretion of the Appellate Division had been abused, the question might be considered upon appeal to this court, yet, when we examine other decisions where that question was actually involved, we find that it has been uniformly held that an order of reversal in a criminal case that does not, upon its face, exclude the possibility that it was based upon an examination of the facts, or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals. People v. O'Brien, 164 N. Y. 57, 58 N. E. 117;People v. Grossman, 168 N. Y. 47, 60 N. E. 1050;People v. Mitchell, 142 N. Y. 639, 36 N. E. 1051;People v. Stevens, 104 N. Y. 667, 10 N. E. 527;People v. Conroy, 97 N. Y. 62;People v. Boas, 92 N. Y. 560;Harris v. Burdett, 73 N. Y. 136.

Therefore, in view of the latter decisions, which must be regarded as controlling and adverse to the dictum in the D'Argencour Case, and after a full consideration of the case at bar, we have reached the conclusion that this court has no jurisdiction to review the order of the Appellate Division reversing the judgment of the trial court upon the ground that justice required a new trial, as that determination rested solely in the discretion of the court below, and involved no errors of law which this court can review.

The appeal should be dismissed.

PARKER, C. J., and GRAY, O'BRIEN, MARTIN, CULLEN, and WERNER, JJ., concur. HAIGHT, J., absent.

Appeal dismissed.

To continue reading

Request your trial
6 cases
  • People v. Mackell
    • United States
    • New York Court of Appeals
    • June 10, 1976
    ...People v. Conroy, 97 N.Y. 62, 72 (1884) (Ruger, Ch. J.); People v. Mitchell, 142 N.Y. 639, 36 N.E. 1051 (1894), Supra; People v. Calabur, 178 N.Y. 463, 70 N.E. 1104 (1904).) Indeed, the Practice Commentary, which was derived from the comments of the Staff to the Temporary Commission on Revi......
  • People v. Epakchi
    • United States
    • New York Court of Appeals
    • April 1, 2021
    ...is not reviewable here"] [citation omitted]). However, twenty years later we confined those intimations to dicta in People v. Calabur, 178 N.Y. 463, 71 N.E. 2 (1904) :37 N.Y.3d 54 "Although a previous motion to dismiss the appeal in this case was denied upon the theory intimated, but not de......
  • People v. Epakchi
    • United States
    • New York Court of Appeals
    • April 1, 2021
    ...is not reviewable here"] [citation omitted]). However, twenty years later we confined those intimations to dicta in People v. Calabur, 178 N.Y. 463, 71 N.E. 2 (1904) :37 N.Y.3d 54 "Although a previous motion to dismiss the appeal in this case was denied upon the theory intimated, but not de......
  • People v. Kibbe
    • United States
    • New York Court of Appeals
    • November 27, 1974
    ...appellate court's refusal to so reverse was exclusively within its discretion (People v. D'Argencour, 95 N.Y. 624; People v. Calabur, 178 N.Y. 463, 71 N.E. 2; see, also, Cohen and Karger, Powers of the New York Court of Appeals, § The orders of the Appellate Division should be affirmed. BRE......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT