The indictment is for having in possession with intent to sell, a book offending against Section 1141 of the Penal Law. Since the defendants do not dispute the fact that they did have in their possession the book with intent to sell it, the simple question is whether this book violates the criminal law of this state as expressed in the section of the Penal Law above noted. While it is sometimes said that this question is one of fact, upon which it is the function of a jury to pass, nevertheless it is clear that, when the defendant raises the question whether the book, as a matter of law, violates the statute, that question is one of law upon which it is the duty of the court to pass. _People_ v. _Brainard_ (192 App. Div. 816); _Halsey_ v. _New York Society_ (234 N. Y. 1). “It is true that whether the book offends against this statute is ordinarily a question of fact for the jury in the first place to determine. It is equally true that upon the review of a conviction for having offended against this provision, it is the duty of this court to examine the publication and see whether the conviction can be sustained under the facts proven. Upon an examination of the book I am satisfied that neither defendant has been guilty of the offense charged in the information, and for this reason the judgment and conviction of the defendant corporation, as well as the defendant Brainard, should be reversed and the information dismissed.” (_People_ v. _Brainard_, 192 App. Div. 816, 821.) 2--The test is the literary as distinct from the pornographic.