
    James Hunt v. James Gordon Bennett.
    An order giving ten days time to a party to mate a motion, and staying proceedings in the mean time, is a mere exercise of discretion, and is not appeal-able under § 349 of the Code.
    The order could only he reviewed, upon obtaining a certificate of the judge at special term, under the rule of this court, adopted March 22, 1861.
    The Court of Appeals having dismissed an appeal taken in this cause by the defendant from a judgment entered against him in this court, and having denied a motion to restore the appeal, with leave to renew, the defendant obtained an order at special term, upon affidavits, staying the plaintiff’s proceeding in this court for ten days, to enable the defendant to renew his motion in the appellate court. From this order the plaintiff appealed.
    
      James Hunt, appellant in person.
    
      Benjamin Galbraith, for the respondent.
   By the Court. Woodruff, J.

The order from which this appeal was taken was not an appealable order, within the 849th section of the Code. It was a mere exercise of discretion in giving the respondent time to make a motion in the Court of Appeals, by staying the appellant’s proceedings in this court in the mean time. The appeal is not regular, under the rule of this court, adopted March 22d, 1851. Under that rule the appellant, if he desired to renew the order made at special term, should have procured the certificate of the judge, as prescribed by that rule.

It is said by the respondent that this suit was brought before the Code took effect. This does not appear by the papers. But if it be conceded, still the case is within thé rule of court last mentioned, and that rule should have been followed.

We are by no means satisfied that the respondent’s application was meritorious; and, as the dismissal of the appeal is upon a ground entirely consistent with good faith and merits on the part of the appellant, we order the appeal dismissed, without costs to either party.

Ordered accordingly.  