Respondent has moved to dismiss this appeal upon the ground that it is taken from an order granting a new trial in an action which was tried by the court without a jury. It appears that the action was tried by the court, without a jury, and that this appeal is from an order granting a new trial. Under the circumstances named, the order in question was not appealable (see. 963, Code Civ. Proc.).

The appeal is dismissed.

Marks, J., and Jennings, J., concurred.