Mead v. Mead, 2 E.D. Smith 223

By the Court. Woodruff, J. The order made in this action, opening the defendant’s default and permitting him to put in an answer, was a matter resting in the discretion of the court, governed by the rules of practice. It did not involve the merits. It was, therefore, not appealable under

section 349 of the Code. The appeal should be dismissed upon this ground. If the plaintiff desired a review of the order, he should have proceeded under the rule of this court of March 22d, 1851; and if the judge, by whom the order was made, deemed the question of such importance and doubt that a review by the general term was proper, he would have granted a certificate as provided in that rule. That rule was adopted by ourselves, for our own guidance, with a view to uniformity of decision on motions not appealable, when the judge before whom a motion is made deems the matter such that the opinion of the whole court upon the subject is desirable. Appeal dismissed.