
    Daniel Buhler et al., Pl’ffs, v. Charles E. Hubbell et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Appeal — Festal judgment.
    After the entry of judgment in this action an order was granted to the! effect that it should not be deemed to determine whether a certain clause! in the agreement in question was abrogated. That question was re-| ferred and the referee found such clause abrogated and his report was! confirmed and an order made declaring the clause abrogated and directing! distribution accordingly. Held, that the order was in effect a final judg-l ment and appealable.
    Motion to dismiss appeal on the ground that it was taken! from an.order directing judgment instead of from the judgment! The facts appear in the opinion.
    
      Wm. Q. Tracy, for motion; A. B. Dyett, opposed.
   Barnard, P. J.

There is no ground for dismissing the appeal shown in.the moving papers. This case was tried and judgment rendered thereon on the merits in March, 1887. In September following, an order was made to the effect that the judgment was not to be deemed to determine whether a certain clause in the agreement between the parties involved in this action was abrogated. In April, 1888, the parties agreed to a reference to determine this question. The referee found that the clause was abrogated. In January, 1889, the referee’s report was confirmed and an order made that the clause was abrogated and that distribution of the fund involved be made on that basis. This order was appealed from by one of the plaintiffs. The motion to dismiss the appeal is based upon the fact that this order was not the final judgment. This is not well founded. The preceding judgment left this question to be determined in the action, and it was so determined.

The order in terms granted a final judgment of distribution on the basis of this report.

The question is merely technical. The judgment first entered settled rights which none of the parties question. The. original evidence and judgment have no place on the appeal from this one subject which was decided upon the reference. The order appealed from requires only the evidence given on this reference and an appeal from this final order presents the only subject of controversy left It was the final judgment so far as respects this appeal.

Motion denied, without costs.

Dykjian and Pratt, JJ., concur.  