
    Jones and others v. Derby.
    An order of the Supreme Court, made at general term, setting aside a judgment and execution thereon for irregularity, but giving no direction in respect to the previous proceedings in the action, is not the subject of an appeal to the Court of Appeals on the ground that it “ determines the action and prevents a judgment from which an appeal might be taken,” although the irregularity alleged by the defendant consisted in the service of the summons in pursuance of a chamber order, so that if he were right no action was ever commenced. The chamber order not having been set aside, the action is to be deemed well commenced and still pending.
    Appeal from an order of the Supreme Court, made at general term in the first district, setting aside the judgment in the action and the execution issued thereon. To the summons issued in the action, the sheriff of the city and county of New-York made return that he had made diligent effort to serve the defendant in his county with the summons, and that he could not be found; that on application at the place of business of the defendant, in the city of New-York, he ascertained that the defendant was a resident of said city, but was then absent temporarily therefrom, and was a householder in the city, where his family resided; and that therefore he returned the defendant as not found. Upon this return, and an affidavit of one of the plaintiff’s attorneys, showing that the defendant was a resident and housekeeper in the city of New-York, where his family was, and that he was absent in the State of California, temporarily, and was not expected to return within four or five months, and that he had left his business in the city in the charge of an agent, a justice of the Supreme Court made an order directing a substituted service of the summons, pursuant to the act of June 30, 1853 (Laws of 1853, 974), and the service having been made accordingly, and the defendant not having appeared or answered, after the expiration of twenty days judgment was perfected for the amount claimed in the summons and costs, and execution issued thereon. The judgment was entered February 24, 1855; and on the twenty-eighth of February, upon an affidavit reiterating the facts contained in the sheriff’s return and in the affidavit on which the order for a substituted service was made, and further alleging that the defendant was expected to return from California in the month of March then next, and that the execution on the judgment had been levied on a store of goods of the defendant, a justice of the Supreme Court made an order that the plaintiffs show cause, before a justice of the court, at chambers, on the fifth of March, why the judgment and execution should not be set aside for irregularity. On the return day named in the order, the justice in attendance, after hearing the counsel of the parties, ordered that the motion be referred to the general term of the court, and pursuant to this order the general term heard the motion, and made an order setting aside the judgment and execution, and the appeal to this court is from this order of the general term.
    
      Nicholas Hill, for the appellants.
    
      John IT. Reynolds, for the respondent.
   Bowen, J.

If an appeal to this court can be taken from' the order of the Supreme Court setting aside the. judgment in the action, the authority for it must be found in the second subdivision of section eleven of the Code, as it has been held that the third subdivision applies only to orders in proceedings based upon and which assume the validity of the judgments in the actions in which the orders are made. (Humphrey v. Chamberlain, 1 Kern., 274.; Dunlop v. Edwards, 3 Comst., 341.)

The second subdivision gives this court j urisdiction to review upon appeal every determination made by the Supreme Court at general term, “in an order affecting a substantial right, made in such” (an) “action, when such order in effect determines the action and, prevents a judgment from which an appeal might be taken.” The motion, on the decision of which the order in question was made, was to set aside the judgment and execution for irregularity, and the judgment and execution only were set aside, leaving the other proceedings in the action unaffected. If the action had ever been commenced, the order left it pending and undetermined. It did not, in effect or otherwise, determine the action. But it is insisted that the judgment was set aside on the ground that the service of the summons was a nullity, and that such was the decision and is now the law of that court, and that no proceedings can be predicated on the service of the summons until the decision is reversed, and consequently that a judgment. in the action is prevented. To render the argument, if sound, of any avail to the plaintiffs, it must be assumed that the service of the summons was sufficient to bring the defendant into court, or to authorize the judgment, as, if otherwise, the decision of the court was right and should be affirmed. The service of the summons was by the authority i and pursuant to the directions of the chamber order, made, or purporting to be made, under the act of 1853, and that order was not set aside by the general term, but remains in full force; and if it was authorized by the proof before the judge when it was made, the action is still pending and the plaintiff may proceed to judgment therein. The Supreme Court has not passed upon the validity of that order or the service under it; at least, it is not to be assumed or inferred that such is the fact, as the order of the court is silent in relation thereto; and we have no right to pass upon the validity of the chamber order, as it has not been appealed from, and no appeal to this court could be taken therefrom. It necessarily follows, either that the Supreme Court was right in setting aside the judgment, on the ground that the chamber order and the service under it were void, in which case the order appealed from should be affirmed, or that the action is still pending, in which latter case the appeal should be dismissed. The plaintiffs’ appeal is based upon the supposition that the first order and service under it were valid, and, as before suggested, we have no right to decide to the contrary, as that question is not before us. We’must assume that the action was well commenced and is yet pending.

The order appealed from, therefore, neither “ determines the action ” nor “ prevents a judgment from which an appeal might be taken,” and consequently no appeal can be taken therefrom to this court.

I think the appeal should be dismissed.

Johnson, J.

This is an appeal from an order of the Supreme Court, setting aside a judgment. The third subdivision of section eleven of the Code gives this court jurisdiction to review on appeal an actual determination of the Supreme Court at general term, in a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. Upon the latter clause of this subdivision, which alone can by possibility extend to the present case, the settled construction of this court is, that an order to be appealable must be based upon the judgment and assume its validity. It was first determined in Sherman v. Felt (2 Comst., 186); it was reiterated in Dunlop v. Edwards (3 Comst., 341); and these cases were approved in Humphrey v. Chamberlain (1 Kern., 274).

All the judges concurring,

Appeal dismissed with costs.  