That portion of the order which affirms the order of Special Term granting the reference, affirmed, with costs. First question certified answered in the affirmative. The appeal from the remaining portion of the order which affirms the order of Special Term denying resettlement of the order of reference, dismissed. *720 In the absence of any statement in the order of the Appellate Division that its decision was based solely on questions of law and not in the exercise of discretion, we are required to presume that the contrary was the fact (Civ. Prac. Act, § 603). The appeal is dismissed on the ground that the second question of law certified is not decisive of the correctness of so much of the order appealed from as relates to the denial of the resettlement. (Civ. Prac. Act, § 589, subd. 3, par. [b]; see Mencher v. Chesley, 297 N. Y. 94, 102; Evadan Realty Corp. v. Patterson, 297 N. Y. 732, 734; Langan v. First Trust & Deposit Co., 296 N. Y. 60, 61.) No opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, ■ Fuld and Bromley, JJ.