[225 N. Y.] Opinion, per COLLIN, J. [Jan., to the then time. The plaintiff produced no further evidence relating to the practicability of guarding the cutter. Such evidence in behalf of the plaintiff did not conflict with that introduced by the defendant to which we have referred. In order that there may have been a practicable guard there must have been a guard acquirable by the defendant, and workable. The statute does not require of the owner of a factory unreasonable results, omniscience, or unusual and extraordinary inventive genius. The evidence of the defendant proved that there was not in the market, or procurable or contrivable by it, any guard for the cutter; diligently it had sought, without success, to acquire a guard. This evidence, if undisputed directly or inferentially, did not permit a finding that the defendant was negligent. It was so undisputed. Indeed, a reasonable inference strengthening it is created by the evidence for the plaintiff. His expert witness, through many years of experience and investigation, during which the statute invoked by the plaintiff was, in effect, existing, had seen only one of twenty-five thousand milling machines machines guarded. Assuredly, the inference was reasonable that the guarding of the cutter up to the time of the trial had been deemed, by the parties interested, infeasible. The testimony of the witness, descriptive of a protecting guard which never had existed or been obtainable or known to or contrivable by the defendant, raised no real conflict and could not be adopted by the jury. The judgment should be reversed and a new trial granted, costs to abide the event. HISCOCK, Ch. J., CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ., concur; CHASE, J., dissents. Judgment reversed, etc. 1919.] Statement of case. [225 N. Y.] THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARQUIS CURTIS, Appellant, v. HARRY R. KIDNEY as Agent and Warden of AUBURN PRISON, Respondent. constitutional law Habeas corpus special proceedings writ to inquire into the detention of one imprisoned, or held in custody, for a crime, is a civil, not a criminal, process, a special proceeding to enforce a civil right — appeal from order dismissing a writ not appealable as involving a constitutional question. 1. A writ of habeas corpus to inquire into the detention of one confined in a prison under conviction and sentence is a civil, not a criminal, proceeding, classified by the Code of Civil Procedure as a state writ (§ 1991) and as a civil special proceeding (§§ 3333–3337, 3343, subd. 20) to enforce a civil right, although its purpose is to effect the release of the person from imprisonment or custody under a criminal prosecution. 2. Where an order of a County Court dismissing a writ of habeas corpus and remanding the relator has been unanimously affirmed by an order of the Appellate Division an appeal cannot be taken to the Court of Appeals unless the appeal involves the construction of the Constitution of this state or of the United States (Code Civ. Pro. § 190), and where the appellant avers that he is held in imprisonment by virtue of a sentence and judgment which the court had not the power to render and which is, therefore, void, but the appeal involves only the determination of the meaning and not the validity of the statutes conferring jurisdiction upon the court, and does not present the constitutionality of the statutes in question or the construction of the Constitution of the state, such appeal must be dismissed. People ex rel. Curtis v. Kidney, 183 App. Div. 451, appeal dismissed. (Submitted December 10, 1918; decided January 14, 1919.) APPEAL from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 5, 1918, which unanimously affirmed an order of the Cayuga County Court dismissing a writ of habeas corpus and remanding the relator to custody. The facts, so far as material, are stated in the opinion. [225 N. Y.] Opinion, per COLLIN, J. [Jan., Marquis Curtis, appellant, in person. An appeal properly lies to this court. Constitutional questions are involved. (Meigan v. Row, 166 App. Div. 175; 216 N. Y. 677; Halpern v. Sanjorasck Bros., 169 App. Div. 468; People ex rel. Buckbee v. Biggs, 171 App. Div. 373; Chandler v. Avery, 47 Hun, 9; People v. Calabur, 91 App. Div. 529; Wiemer v. Brambury, 30 Mich. 201; Stuart v. Palmer, 74 N. Y. 183; People ex rel. Witherbee v. Supervisors, 70 N. Y. 234.) Benn Kenyon and Harry E. Lewis, District Attorneys· (Harry G. Anderson of counsel), for respondent. The order is not appealable to this court as a matter of right. (Code Civ. Pro. § 190.) COLLIN, J. Marquis Curtis, confined in the prison at Auburn under conviction and sentence, secured the writ of habeas corpus to inquire into the cause of his detention, returnable on April 1, 1918, before the county judge of Cayuga county. The County Court, after a hearing, by an order, dismissed the writ and remanded him. The Appellate Division, upon his appeal, by its order entered June 5, 1918, unanimously affirmed the order of the County Court. The appeal here is from the order of affirmance. At the outset, we must determine whether or not we have the power or jurisdiction to review the unanimous order of the Appellate Division, or, in more direct statement, whether the proceeding by writ of habeas corpus is a civil proceeding or a criminal proceeding. If it is a civil proceeding we have not power to review the order, because of the restriction imposed by section one hundred and ninety of the Code of Civil Procedure in this language: "From and after the 31st day of May, 1917, the jurisdiction of the court of appeals shall, in civil actions and proceedings, be confined to the review upon 1919.] Opinion, per COLLIN, J. [225 N. Y.] appeal of an actual determination made by an appellate division of the supreme court in either of the following cases, and no others: 1. An appeal may be taken as of right to said court from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding where is directly involved the construction of the constitution of the state or of the United States, or where one or more of the justices of the appellate division dissents from the decision of the court, or where the judgment or order is one of reversal or modification." The section has three other subdivisions, not one of which has a relevancy to the order here. We have uniformly held that all proceedings in a criminal action or proceeding are, generally speaking, governed by the Code of Criminal Procedure. (People v. Redmond, 225 N. Y. 206.) The Code of Criminal Procedure does not contain an enactment like unto section one hundred and ninety of the Code of Civil Procedure. The appeal at bar does not involve the construction of the Constitution of the state or of the United States, nor did a justice of the Appellate Division dissent from its decision. Therefore, if the appeal is in a civil proceeding, it must, under the mandate of the statute, be dismissed. It has been stated by text-writers and in judicial opinion that the courts of England have not declared the proceeding by the writ of habeas corpus to inquire into the cause of detention either civil or criminal in its nature. (Martin v. District Court, 37 Colo. 110. See, also, People ex rel. Tweed v. Liscomb, 60 N. Y. 559; Simmons v. Georgia Iron & Coal Co., 117 Ga. 305.) The courts of our country, compelled by legislative enactments regulating appellate jurisdiction or other matters of procedure, have been constrained to be more bold. In Ex parte Tom Tong (108 U. S. 556) is, unquestionably, the leading decision determining the nature of the proceed [225 N. Y.] Opinion, per COLLIN, J. [Jan., ing. There, as here, the jurisdiction of the court depended on whether the proceeding was to be treated as civil or criminal; if civil, the court had not, if criminal, it had jurisdiction. The petitioner, Tom Tong, was restrained of his liberty, because of alleged violation of law, under criminal process. The court said: "Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. This petitioner claims that the Constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution." (p. 559.) It refused to take jurisdiction. It has consistently followed the decision. (Kurtz v. Moffitt, 115 U. S. 487, 494; Cross v. Burke, 146 U. S. 82, 88; Matter of Frederich, 149 U. S. 70, 75; Fisher v. Baker, 203 U. S. 174, 181.) Its reasoning and conclusion have been adopted by the greater number of the states in which codes regulate procedure. (State ex rel. Durner v. Huegin, 110 Wis. 189, 220; Matter of Thompson, 85 N. J. Eq. 221, 248; Selicow v. Dunn, 100 Neb. 615; Henderson v. James, 52 Ohio St. 242, 259; |