1919.] Opinion, per COLLIN, J. [225 N. Y.] transferred, at a time not disclosed, from his name to that of his mother. We have concluded that, as a matter of law, no inference could be reasonably drawn from those facts that the insured was dead. The law contains the general presumption that a person who has been continuously absent from his home or place of residence, and unheard from or of by those who, if he had been alive, would naturally have heard of him, through the period of seven years, is dead. The presumption does not arise, however, when there exist circumstances or facts which reasonably account for his not being heard of, or his absence and abstention from communication are reasonably explained without assuming his death, or where diligent inquiry as to whether he is alive or dead has not been made. The presumption is the offspring, created by the courts, of the statutes enacted centuries ago providing that a tenant of real estate for life, or a husband or wife, who had been under a continuous and unexplained disappearance for a designated number of years, should be presumed to be dead. (Matter of Board of Education of New York, 173 N. Y. 321. See, also, Code of Civil Procedure, section 841; Penal Law, section 341.) The burden of establishing the facts which may, within reason, give rise to the presumption is upon the person invoking it. He must prove more than the mere fact of absence during the period. He must produce evidence to justify the inference that the death of the absentee is the probable reason why nothing is known about him. Before a court is justified in presuming the death of a person, at a designated time, because of his absence, the proof should remove the reasonable probability of his being alive at the time. The presumption does not arise where it is improbable there would have been any communication with those who naturally would receive it. Whether or not the absence is unexplained except by death, or, in [225 N. Y.] Opinion, per COLLIN, J. [Jan., fine, whether or not the presumption arises from the evidence is almost always, of necessity, a question for the jury. Whenever, however, the evidence is without contradiction and incapable, whether without or with contradiction, of creating, in reasonable minds, conflicting inferences, the question is one of law for the trial justice to decide. (Matter of Board of Education of New York, 173 N. Y. 321; Matter of Wagener, 143 App. Div. 286; McCartee v. Camel, 1 Barb. Ch. 455; Fuller v. New York Life Ins. Co., 199 Fed. Rep. 897.) The instant case rests wholly upon unconflicting evidence produced by the plaintiff. The contents of the communications from the insured establish clearly and directly that he, prior to and at the time of the cessation of those communications, had the definite and fixed intention of not returning to the home of his parents. He had formed the purpose of seeking elsewhere, in the west, or the north or the south, the opportunity and the location satisfactory to him and conducive to the acquisition of money. He had become a fortune seeker. He declared his intention of settling and of engaging in business in another place than the city of Rochester, and his absence from that city does not create the inference that it was caused by his death. The contents of those communications and the other facts do not justify the inference that death is the probable reason why nothing has been heard from or of him since October, 1907. They establish that the insured left the home of his parents hopeful and intending to send his mother moneys from his wages to be saved. His absence was not to be temporary. The anticipated success and result were not achieved. The proof discloses two remittances only to his mother. His letter of October 16, 1906, reveals an offer of financial help from his mother to him, the facts that he had not saved a cent and was seeking a change in his occupation to that of a brakeman, and 1919.] Opinion, per COLLIN, J. [225 N. Y.] had acquired the inclination to seek new opportunities and locations. The ties of his former home and of family were disintegrating and dissolving. As early as April, 1907, he had formed the resolve or practice, at least, of refraining from sending letters to his family. Between that month and the latter part of September, 1907, the sole communication from him was the postal card of June 4, on which he stated: "Going through to Kansas City," and his parents did not know where he was or what he was doing and sought information in those respects from those who had employed him. His letter of September 22, 1907, shows that it was written solely because he wished his father to procure and forward to him a recommendation. It did not afford his parents any intelligence of his condition, occupation or location through the previous months during which he was unheard of. The first sentence of it is persuasive to the conclusion that his silence was deliberate and was to continue until he had proven, at least, that he was not "a failure.” His practice of refraining from writing to his parents was naturally confirmed and made rigorous by the facts that his parents declined to fulfill his request or to further correspond with him. In the postal cards of October, 1907, he told them, simply, he was on his way farther west. He did not care to inform them of his intended or probable destination or occupation or vouchsafe a single word concerning his condition, intentions, or past activities. He, in effect, had ceased to communicate with his family through many months during which it is certain he was living, and his later writings indicate, beyond question, that the cessation would be continued. The clear and direct inference is that his resolution and habit, and not death, is the probable reason why nothing was known about him at the commencement of this action. This inference is upheld additionally by the other facts. He was young, unmar [225 N. Y.] Statement of case. [Jan., ried, in good health, of good appearance and ambitious to prove himself capable of securing success. There is no suggestion in the evidence that he was despondent, or was or intended to be venturesome or prone to subject himself to unusual risks. We know commonly that disappearances such as his are not rare. His future appearance is not improbable. In view of the present agencies of extending aid and care in case of sickness or accident, and intelligence to those concerned in case of disaster or death, the facts put forward as the source of the presumption of death, because of absence and lack of intelligence, should be carefully considered and should sustain that presumption. We do not consider whether or not the inquiry of the plaintiff concerning the insured was diligent and suitable. The judgment should be reversed and a new trial granted, costs to abide the event. CUDDEBACK, CARDOZO and CRANE, JJ., concur; HISCOCK, Ch. J., POUND and ANDREWS, JJ., dissent. Judgment reversed, etc. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. EDWARD B. REDMOND, Respondent. Crimes appeal order of Appellate Division reversing a judgment of conviction and ordering a new trial "for errors of law only "such order cannot be reviewed in Court of Appeals order should show that decision was upon weight of evidence. The Court of Appeals cannot review an order of the Appellate Division reversing a judgment of conviction and ordering a new trial, where it is stated that such reversal is "for errors of law only." A convicted defendant has the right to have the Appellate Division review and render its decision upon the facts, but the statement that the reversal is for errors of law only does not establish that the Appellate Division has awarded him that right. In such case the 1919.] Points of counsel. [225 N. Y.] appeal should be dismissed, but without prejudice to a new application to the Appellate Division for the amendment and resettlement of its order by stating, in it, its decision upon the weight of evidence. People v. Redmond, 179 App. Div. 127, appeal dismissed. (Argued November 21, 1918; decided January 7, 1919.) APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1917, which reversed a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of perjury and granted a new trial. The facts, so far as material, are stated in the opinion. Harry E. Lewis, District Attorney (Hersey Egginton, Harry G. Anderson and John C. Ruston of counsel), for appellant. The judgment and order of the Appellate Division reversing the judgment of conviction herein is properly appealable to this court. (People v. O'Brien, 164 N. Y. 57; People v. Calabur, 178 N. Y. 463; People v. Miller, 169 N. Y. 339; People v. Damron, 212 N. Y. 256; Code Cr. Pro. § 519; Jones on Evidence [2d ed.], art. 101; Chamberlayne on Evidence, § 45; Chase's Stephen's Digest on Evidence, §§ 1202, 1205; Mandeville v. Reynolds, 68 N. Y. 528; Hess v. Smith, 16 Misc. Rep. 55; People v. Kelly, 31 Hun, 225; Williams v. Montgomery, 60 N. Y. 648; People v. Ostrander, 28 Hun, 38; People v. Draper, 28 Hun, 1; People v. Sprague, 217 N. Y. 373; People v. Gallagher, 75 App. Div. 39; People v. Buchanan, 25 N. Y. Supp. 481.) Andrew F. Van Thun, Jr., for respondent. The court is without jurisdiction to entertain this appeal. (People v. Boas, 92 N. Y. 560; People v. Stevens, 104 N. Y. 667; People v. O'Brien, 164 N. Y. 57; People v. Calabur, 178 N. Y. 463; People v. Damron, 212 N. Y. 256; Code Crim. Pro. 519; People v. Hovey, 92 N. Y. 554; People v. |