The court upon a practice motion has no power to make an order of reference to hear and determine. The only order which can be made is to direct a referee to take the testimony and report with his opinion.
Upon the merits we are of opinion that the court had no authority to strike out relevant averments simply because they are claimed to be untrue.
The order should be i-eversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Present — Yan Brunt, P. J., O’Brien and Follett, JJ.Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.