Appeal dismissed, with ten dollars costs *844and disbursements. No determination had been made upon the merits, and the order remitting the matter to the referee, with liberty to any party to submit further proofs, is a familiar act of discretion which cannot be regarded as affecting a substantial right. The denial of the city’s motion to confirm the report is not on the merits, but merely suspends action pending completion of the proofs. (Matter of Commissioner of Public Works, 185 N. Y. 391.) Blackmar, P. J., Rich, Putnam, Kelly and Manning, JJ., concur.