
    Pioneer Iron Works, Respondent, v. Marine Engine and Machine Company, Appellant.
    Reported below, 130 App. Div. 903.
    (Argued April 26, 1909;
    decided April 28, 1909.)
    Motion to dismiss appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 27,1909, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover on contract.
    The motion was made upon the grounds that the action was to recover for services and, therefore, unappealable to the Court of Appeals except by permission, which had not been obtained; that the appeal was taken for purposes of delay only, the exceptions being frivolous, and that the return was defective.
    
      Gustav Lange for motion.
    
      Morgan J. O'Brien opposed.
   Motion denied, and it is further ordered that the case on appeal be made to conform to rule 4 of this court.  