It seems to me that the case agreed upon for the purposes of this appeal by the counsel for the respective parties, plainly is not the case heard by the learned Chief Justice at the Special Term.
The fact presented to the learned Chief Justice at the Special Term, differs most essentially from this. The order appealed from, recites: “It appearing that, during tioo of the terms taxed by the clerk, " * * the cause was reserved generally by the cleric on consent. ■* * *
“ Bule 20 of this Court, providing ‘ regulations as to the calendars,’ permits causes to be reserved generally by a written consent of the attorneys, filed at any time before the case is on the day calendar.” It would seem to follow that, if this action was upon the day calendar, it could be reserved generally only by the order of the Court, and that a written consent was filed under the rule.
The order made at the Special Term, was correct upon the statements of fact there presented, and it must be affirmed; we cannot entertain an appeal from an order made at Special Term, though a statement of facts be agreed upon, where it is manifest no such case was presented to the Court below.
The order appealed from must be affirmed, with costs.