Decree affirmed. The evidence, or statements of counsel, if such were received in lieu of evidence, are not reported. The findings of material facts made by the trial judge in his report are consistent with each other. It follows that the findings must stand and are not open to review here. Wyness v. Crowley, 292 Mass. 459, 460, 461. They are ample to support the decree of the Probate Court. G.L. (Ter. Ed.) c. 202, Sections 1, 2, 6, 7, 8, 10, 14.

Appeal dismissed. This is a petition filed in the Superior Court by an employee to enforce an alleged agreement approved by the Industrial Accident Board between an employee and his employer, which stands also in the position of insurer. See G.L. (Ter. Ed.) c. 152, Section 6. Such an agreement, if in conformity to law, may be enforced by the Superior Court under the provisions of G.L. (Ter. Ed.) c. 152, Section 11, as amended, providing that the Superior Court "shall . . . render a decree in accordance therewith," but that "there shall be no appeal therefrom . . . where the decree is based upon . . . a memorandum of agreement." By force of this statute no appeal lies from a decree on the petition in this case, and the appeal must be dismissed. Dempsey's Case, 230 Mass. 583, 587. Sterling's Case, 233 Mass. 485, 490. DiLeo's Case, 295 Mass. 568, 570-571. Employers' Liability Assurance Corp. Ltd. v. DiLeo, 298 Mass. 401, 402-403. See also Young v. Duncan, 218 Mass. 346, 353-354; Sciola's Case, 236 Mass. 407, 411-412; Rocha's Case, 300 Mass. 121, 125.

Appeal dismissed with double costs. In this action of tort tried in the Superior Court there was a verdict for the plaintiff. The defendant moved for a new trial on the ground that the verdict was against the evidence and the weight of the evidence, and that the damages were excessive. The motion was denied and the defendant appealed. The denial of the motion was not an order from which an appeal lies. It was neither an "order . . . sustaining or overruling a demurrer" nor an "order for judgment upon a case stated," and it was not an "order decisive of the case founded upon matter of law apparent on the record." G.L. (Ter. Ed.) c. 231, Section 96. The evidence upon which the verdict was rendered is not a part of the record. The appeal, therefore, must be dismissed. Pheeney v. Malden Coal Co. 300 Mass. 60, and cases cited. Though the court has no jurisdiction of the merits, it has jurisdiction to award costs. Donnelly v. Montague, 305 Mass. 14, 20. The

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appeal is frivolous, and double costs of such appeal are awarded against the defendant. G.L. (Ter. Ed.) c. 211, Section 10.