The appeal should be dismissed on the ground that there was in fact a trial of an issue raised by an affirmative defense in the answer; that the *781judgment is without findings or a decision to support it and the matter should be remitted to the Special Term to supply the defects. (Ventimiglia, v. Eichner, 213 N. Y. 147.) Whether there was sufficient evidence to warrant any finding of fact may not be considered now, since the appeal is not properly here. All concur. Present — Clark, Sears, Crouch, Sawyer and Edgcomb, JJ. Appeal dismissed and matter remitted to the Special Term to proceed in accordance with per curiam memorandum, without costs.