
    BARBER ASPHALT PAVING CO. v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO. et al.
    (Circuit Court of Appeals, Second Circuit.
    August 2, 1909.)
    No. 297.
    Appeal from the Circuit Court of the United States for the Southern District of New York.
    Dexter, Osborn & Fleming (George N. Whittlesey, of counsel), for appellant.
    Kellogg & Rose, for complainant Bvarts, Choate & Sherman (Herbert J. Bickford, of counsel), for respondent Whitridge. Henry M. Ward and Nathan Ottinger, amici curia;. Selden Bacon, for Haley, Adm’r. Merriil & Rogers (Alfred H. Holbrook, of counsel), for receiver of Forty-Second St, M. & St N. Ave. Ry. Co. Hamilton v. Wood, for creditors’ committee of the New York City Ry. Co. Bowers & Sands, for Central Trust Co.
    Before ADAMS, HOLT, and HAND, District Judges.
   PER CURIAM.

Judge Lacomhe's order (170 Fed. 1022) is in no sense final, even assuming that a decree finally determining this proceeding is itself a final decree in the suit from which an appeal can be taken. The reference which he has directed to the master is not a mere ministerial act in execution of a final order. It is a substantial part of the litigation, upon the determination of which the rights of the parties wholly depend. Although no parties to the record have raised this point, the brief of others interested does raise It, and in any case no jurisdiction can be conferred by consent, for the proceedings are non eoram judice. We must therefore dismiss the appeal, and the parties must prosecute the reference before the special master.  