If the opinion of JusticeBacoh, in the case of Bergen v. Bradley and others (36 N. Y. R, 316), as to an appeal, is to be regarded as the decision of this court, it is decisive of this ease. As to the appeal, this case is in precisely the condition that was.

It is clear, fi’om that opinion, that this action is not before this court in such a form as to admit of review.

There is nothing shown by the report of that case, that on that question it was not the opinion of the court. It must be so regarded. In accordance therewith, this appeal should be dismissed with costs.

Appeal dismissed.

D. B. JProsser, for respondents.

D. J. BunderUn, for appellant.