
    Edward J. Kelsey, v. James Sargent.
    
    
      (Court of Appeals,
    
    
      Filed January 25, 1887.)
    1. Judgment — Rendering a ¡reference necessary is interlocutory. A judgment rendering a reference necessary is interlocutory, not final.
    2. Appeal — Order denying new trial appeal arle — Code Civ. Pro., § 190, subd. 2.
    Prom such a judgment rendered hy a special term an appeal was taken to the general term and the defendant also moved for a new trial upon exceptions under Code Civ. Pro., § 1001. Held, that under Code Civ. Pro., § 190, suhd. 2, the appeal was well taken so far as it affected an order denying the motion for a new trial.
    3. Same — When in part well taken, motion to dismiss as a whole will BE DENIED.
    
      Held, that the appeal being in part well taken, a motion to dismiss it as % whole should be denied.
    Motion to dismiss an appeal from a judgment of tbe supreme court, general term, fifth department.
    
      Theodore Bacon, for the motion; J. & Q. Van Voorhis, opposed.
    
      
       Affirming 3 N. Y. State Reporter, 477; 41 Hun, 637 mem.
      
    
   Per Curiam.

Tbe judgment rendered at special term made a reference necessary, therefore it was not final, but interlocutory. Barker v. White, 58 N. Y., 204.

An appeal, however, was taken to tbe general term, and upon exceptions the defendant also moved that court for a new trial under section 1001 of tbe Code. Tbe judgment was affirmed and tbe motion for a new trial denied. One order embraced both decisions, and from the whole of that order tbe defendant appealed.

So far as tbe appeal affects tbe order denying a new trial, it was well taken (§ 190, subd. 2; Raynor v. Raynor, 94 N. Y., 248, 251,) and as tbe motion to dismiss relates to tbe whole appeal, and not a part only, it should be denied, and as tbe plaintiff asks for too much, be should pay costs.

Motion denied, with $10 costs.

All concur.  