As there was no issue of fact presented on. the motion it was error to appoint a referee. (Slutzkin v. Gerhard & Hey, Inc., 195 App. Div. 559; Buchholtz v. Florida East Coast Ry. Co., 59 id. 566.)
Order reversed, with ten dollars costs and disbursements, and matter remitted to the court below for decision on the papers.
Callahan and Frankenthaler, JJ., concur; Shientag, J., dissents in part in memorandum.