
    Mead v. Mead.
    An order opening a default and permitting the defendant to answer the complaint, is not an order which involves the merits of the action, and no appeal will lie from such an order, under § 349 of the Code.
    Such an order may be reviewed, upon a certificate of the judge who made the order, where it is deemed by him of such importance and doubt, as to render it proper to take the opinion of the whole court on the subject.
    But this is a matter of practice, regulated by a rule of this court for its own guidance.
    Appeal by the plaintiff from an order made at special term, opening the defendant’s default and permitting him to answer.
   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.  