Judgment and orders reversed on the law and the facts. Order granting the motion to dismiss the plaintiff's complaint reversed, without costs, and motion denied, without costs. Order denying motion to vacate the order of reference and restore case to the calendar reversed, without costs, and motion granted upon payment of ten dollars costs. We think this case comes within the doctrine of the case of Mladinich v. Livingston ( 112 App. Div. 181). Kelly, P.J., Rich, Jaycox, Kelby and Kapper, JJ., concur.