
    In the Matter of the Administration of the Estate of Rose T. Mosher, Deceased. Elizabeth Sarles, Appellant; John Walsh, as Executor, Respondent.
    (Submitted January 8, 1906;
    decided January 16, 1906.)
    Reported below, 103 App. Div. 459.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 3, 1905, reversing a judgment in favor of appellant herein entered upon the report of a referee and directing a new trial before another referee.
    The motion was made upon the ground that the order of the Appellate Division herein was not appealable under section 191 of the Code of Civil Procedure.
    
      M. J. Earley for motion.
    
      George W. McKenzie opposed.
   Motion denied, with ten dollars costs. .If the judgment on the report of the referee was reversed by the Appellate Division on questions of fact, as claimed by the respondent, which claim is apparently justified by his citations from the opinion of the court, the order fails to show it, and under section 1338 of the Code of Civil Procedure it must be presumed that the reversal was not granted for such errors, despite anything that may appear in the opinion.  