I am satisfied that the judgment in this case is correct; but I am not inclined to discuss the facts of the case. I have on another occasion protested against cases of this kind being entertained by us. I still adhere to that opinion. If a jury is waived below, we cannot be made such. I think we have erred in entertaining- jurisdiction of such cases. The statute (Comp. L. § 3436 and seq.) requires a special finding, upon which, in my opinion, only exceptions can be taken, or a case made; never upon a general finding in the nature of a general verdict. The whole idea suggested is that this Court is to *300inquire into questions specially raised, and not to act as an appellate court. (§8438).

I think the judgment should be affirmed, with costs.