The defendant appeared and took part in the trial which preceded the entry of the interlocutory decree. He contested plaintiff’s .claim of the existence of any partnership and this issue was improperly decided against him. The most that the evidence before the court established was a joint venture for the expenses of which defendant would only be responsible for his share, namely, one-half of the amount for which judgment has been rendered against him. His failure to appear before the official referee and contest the items of the account did not deprive him of the right by appeal from the final judgment to question the correctness of the interlocutory decree upon which it was based.
The judgment appealed from should be modified as indicated herein and as so modified affirmed. /
Martin, P, J., concurs.
Appeal from judgments dismissed, with costs and disbursements to the respondent.