
    COURT OF APPEALS.
    Jacob Carpenter agt. Mart S. Carpenter.
    An order, setting aside a decree of divorce, taken as confessed, and allowing alimony, &c., is not an appealable order to this court.
    
      May Term, 1849.
    —This was a motion to dismiss an appeal from an order of the Supreme Court, made at a general term, on the 4th of January, 1849.
    On the 26th May, 1847, the complainant (Jacob Carpenter) filed his bill for divorce. The bill was taken as confessed on the 22d of June, 1847, on an affidavit of service of subpoena, and an order of reference made. On the master’s report of the facts, a decree for divorce was granted in December, 1847. The defendant moved that the order taken by default be set aside, &c.; which motion was granted, and an order entered 20th December, 1847. On the 29th December, 1847, a further order for alimony and counsel fee was obtained by defendant. Proceedings were then stayed by the general term, until the complainant could apply for a re-hearing of the two last mentioned orders at the general term on the 17th January, 1848. In the meantime an arrangement was got up between the parties, by which it was agreed that the decree of divorce should stand. A bond for support, &c., was given. A motion was then made at general term by the complainant (and opposed,) that the orders of 20th and 29th December,1847, (setting aside the decree of divorce,and allowing alimony, &c.,) should be set aside and vacated, &c.; which motion was granted on the 25th January, 1848. A rehearing of the motion for the 17th January,
    
      1848, was then, applied for in behalf of the defendant, and that the order of the 25th January, 1848, should be set aside; which motion was referred to a justice at special term, and was heard before Mr. Justice Morse, October 23d, 1848, and an order entered, annulling the order of the 25th January, 1848, and restoring the orders of the 20th and 29th December, 1847. This last mentioned order of Judge Morse (23d Oct. 1848,) was affirmed on a rehearing by the Supreme Court, at a general term, on the 4th of January, 1849, with costs; from which last mentioned order at general term, this appeal was brought.
    The effect of the order of Judge Morse (Oct 23d, 1848,) so affirmed at the general term on the 4th of January, 1849, was to restore the two original orders : the first, of the 20th December, 1847, setting aside a decree of divorce, and letting the defendant in to defend; the second at the 29th December, 1847, allowing the defendant a counsel fee and alimony.
    A. J. Spooner, for motion.
    
    Edward Sandeord, opposed.
    
   The court held the case under advisement a few days, when they decided that the order appealed from was not an appealable order to this court, and granted the motion to dismiss with costs..  