This is an unusual record, the like of which we have never before met. The action is to foreclose a mortgage on real estate, and was moved for trial at a Special Term held in Onondaga county in November, 1896. '
When the case was moved the defendant asked that the complaint be dismissed on the grounds : (1) That a cause of action was not stated in the complaint; (2) that causes of action were improperly joined in the complaint; and (3) that the defendant was entitled to a judgment because no reply had been served.
The motion was properly denied by the learned justice presiding. The defendant did not except to the decision, which was put in the form of an order, nor was an exception thereafter filed or served. From this decision the defendant has appealed.
The trial was not- completed and neither party had rested.
A decision of a Special Term, made during the trial of an action, cannot be reviewed'by this court until the trial has "been concluded and a decision made, signed, filed and excepted to, as provided by the Code of Civil Procedure.
The appeal should be dismissed, with ten dollars costs and disbursements.
Appeal dismissed, with ten dollars costs and disbursements.