I concur.; The defendant not having appealed from the order denying his motion, we have no power to review the action of the Special Term. The motion having been denied, the court had no authority to; refer any question of fact as there was no .question before the court. The order of reference was, therefore, unauthorized, and the order, so far as it is appealed from,, should be reversed.
Order, so far as appealed from reversed, with ten dollars costs and "disbursements. , '