Opinion
Submitted April 27, 1956
Decided May 24, 1956
Appeal from the Appellate Division of the Supreme Court in the first judicial department, NATHAN, J.
Frederick J. Britton for appellant.
Irwin Pakula for respondent.
Neither the order appealed from nor the order granting permission to appeal to this court contains any specification by the Appellate Division that its decision was based solely on questions of law and was not also the result of an exercise of discretion. In such circumstances, section 603 of the Civil Practice Act compels us to presume that the contrary is the fact. That being so, it follows that there is no decisive question of law presented for our review and that the appeal must be dismissed. (See Hilton Watch Co. v. Benrus Watch Co., 1 N.Y.2d 271, decided herewith; Mencher v. Chesley, 297 N.Y. 94, 102-103; Langan v. First Trust Deposit Co., 296 N.Y. 60; Braunworth v. Braunworth, 285 N.Y. 151; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 383-384.)
The appeal should be dismissed, without costs, unless appellant applies to the Appellate Division within 30 days for resettlement of the order granting permission to appeal and for the certification of a question or questions of law in accordance with section 589 (subd. 4, par. [b]) and section 603 of the Civil Practice Act, and unless thereafter such application is granted. (See Langan v. First Trust Deposit Co., 296 N.Y. 834.)
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.
Appeal dismissed, etc.