The stipulation for judgment absolute herein filed is made subject to the qualification that it is “ without prejudice to the right of the defendant, appellant, to appeal from said affirmance to the Supreme Court of the United States,” etc. The stipulation for judgment absolute (N. Y. Const, art. 6, § 7; Civ. Prac. Act, § 588, subd. 2) which must be filed to give this court jurisdiction on an appeal from an order granting a new trial is in effect a stipulation for judgment by consent in case of affirmance and should, therefore, be unqualified. This court may not dispense with the constitutional limitation on the right of appeal.

The appeal should be dismissed, with costs.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Appeal dismissed.