
    Bernard S. McKean, Appellant, v. Charles H. Adams, Respondent.
    (New York Common Pleas—General Term,
    March, 1894.)
    An order of the General Term of the City Court, affirming an,order vacating and setting .aside an order settling a case on appeal and ordering the same on file, on the ground of irregularity, is not appealahl'e to the Court of Common Pleas.
    
      Appeal from order of the General Term of the City Court of Mew York, affirming an order setting aside a case on appeal.
    
      E. F. Bullard, for appellant.
    Booraem, Hamilton <& Beckett {William II. Hamilton and Henry M. Ward, of counsel), for respondent.
   Per Curiam.

The appeal will have to be dismissed because the order of the General Term of the City Court of which appellant complains is not appealable to this court under any provision of the Code. It is an order vacating his case on appeal and vacating the settlement thereof, and was made beeaxise the settlement of the case was procured irregularly. The appellant is not thereby deprived of his appeal from the judgment. He still has his remedy.

The facts are these: lie appealed in the City Court from a judgment of the trial term and served a case upon appeal. It was returned for alleged irregularities and he subsequently applied to the justice who tried the cause for a settlement of the case upon the ground that no amendments had been served. The application was granted and the case settled and filed and notióe thereof given to the respondent, who immediately moved before the justice upon affidavits to vacate the order settling the case and ordering it on file and to vacate the case. The motion was granted, manifestly because the appellant had not disclosed, when he applied to the judge for an order settling the case and ordering it on file, that it had been returned by the respondent. The judge very properly vacated his order, leaving the appellant to his remedy by motion to compel the respondent to receive the case. That he can make now, and no substantial right is affected by the order appealed from.

The question determined by the City Court vras a minor point of practice, of the correctness of which they are the judges, and does not affect the merits. People v. N. Y. Cent. R. R., 29 N. Y. 421. The question whether the motion to vacate the order and case should have been made at a Special Term or before the judge who settled the ease is immaterial, as the order is not appealable in any aspect for the reasons stated.

The appeal should be dismissed, with ten dollars costs and disbursements to respondent.

Present: Daly, Ch. J., Bisohoff and Pryor, JJ.

Appeal dismissed, with ten dollars costs and disbursements.  