The Justice at Special Term ruled, in the exercise of discretion (Rules Civ. Prac., rule 102), that decision on the merits of the question raised by defendants’ motion should be deferred until the trial. The Appellate Division, in affirming the order of Special Term and in granting leave to appeal to this court, failed to state that its decision was based solely on questions of law and was not in the exercise of the discretion conferred by rule 102. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the Appellate Division did in fact deny the defendants ’ motion in the exercise of a permissible discretion (Mencher v. Chesley, 297 N. Y. 94, 102-103). It follows that the questions of law certified are not decisive of the correctness of the decision of the Appellate *865Division and, therefore, that the appeal must be dismissed, with costs (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 382-383).
The appeal should be dismissed, with costs.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Voorhis, JJ., concur.
Appeal dismissed.