Palmer v. . the State of New York, 111 N.E. 211 (N.Y. 1916). · Go Syfert
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Palmer v. . the State of New York, 111 N.E. 211 (N.Y. 1916). Cases Citing This Book View Copy Cite
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Sarah E. Palmer Et Al., as Executors of and Trustees Under the Will of Henry U. Palmer, Deceased, Et Al., Appellants,
v.
the State of New York, Respondent
New York Court of Appeals.
Jan 18, 1916.
111 N.E. 211
1916 N.Y. LEXIS 1351
Edgar T. Brackett for appellants. Egburt E. Woodbury, Attorney-General ( Wilber W. Chambers of counsel), for respondent.
<italic>Per Curiam</italic>..
Cited by 3 opinions  |  Published
[*602] Per Curiam.

' The question certified to us by the Appellate Division is not in such a form as to enable us to answer it. We are asked to say whether the service of the judgment was sufficient to start running the time within which the state was required to appeal. The answer to that question depends upon the choice to be made between conflicting versions of the transaction. If we accept as correct the affidavits submitted by the claimants, we may be led to one answer; if we accept as correct the affidavits submitted by the state, we may be led tó another. We are without power to decide a question, even though certified to us by the Appellate Division, if the answer makes it necessary to pass upon a question of fact (Matter of Westerfield, 163 N. Y. 209; Neresheimer v. Smyth, 167 N. Y. 202, 207).

The appeal should be dismissed, without costs to either party. •

Willard Bartlett, Ch. J., Hiscock, Hogan, Cardozo and Seabury, JJ., concur; Chase and Collin, JJ., dissent, and vote for reversal.

Appeal dismissed.