161 N.Y. 120 | NY | 1899
This action was brought upon a policy of insurance. The defense was based chiefly upon the ground that the policy was issued without the authority of the defendant and without consideration. The trial court found as a fact *122 that the policy was procured and delivered to the plaintiff by one Alden, an insurance broker; that he was the agent of the plaintiff and not of the defendant, and that the premium paid to him was never turned over to the manager of the defendant. The Appellate Division reversed the judgment, both upon the law and upon the facts, and granted a new trial.
This court has repeatedly held that, where the Appellate Division reverses upon the facts and grants a new trial, it has no jurisdiction to review the order. It is true that the Appellate Division cannot create a question of fact by declaring that there is one, nor, by assuming to reverse on the facts, reverse a determination that does not involve a question of fact, and it, therefore, becomes our duty to look into the record for the purpose of determining whether there was a question of fact involved in the case. (Otten v. Manh. Ry. Co.,
All concur.
Appeal dismissed.