Appellate Division of the Supreme Court of the State of New York April 16, 1915 (Empire City Racing Ass'n v. National Fair & Exposition Ass'n)

Jenks, P. J.:

The plaintiff appeals from an order of the Special Term that denies a motion for a preference in an action of ejectment when the right depended upon facts which did not appear in the pleadings or other papers upon which the cause is to be tried. I think that the order is not appealable. (Code Civ. Proc. § 793; Nichols N. Y. Pr. 3635.