
    Julian Benedict, Respondent, v. Robert S. Smith, Appellant.
    Reported below, 130 App. Div. —.
    (Argued February 8, 1909;
    decided February 16, 1909.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13,1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action for money had and received.
    The motion was made upon the ground that the action was in reality one to recover for services, and, therefore, the affirmance by the Appellate Division being unanimous, unappealable to the Court of Appeals.
    
      Robert L. Stanton for motion.
    
      Philip S. Hill opposed.
   Motion denied, with ten dollars costs.  