The judgment rendered at special term made a reference necessary, therefore it was not final, but interlocutory. Barker v. White, 58 N. Y. 204.
*326An appeal, however, was taken to the general term, and upon exceptions the defendant also moved that court for a new trial under section 1001 of the Code. The judgment was affirmed and the motion for a new trial denied. One order embraced both decisions, and from the whole of that order the defendant appealed.
So far as the appeal affects the order denying a new trial, it was well taken (§ 190, subd. 2; Raynor v. Raynor, 94 N. Y. 248, 251), and as the motion to dismiss relates to the whole appeal, and not a part only, it should be denied, and as the plaintiff asks for too much, he should pay costs.
Motion denied, with $10 costs.
All concur.