The order of the Supreme Court, from which this appeal is brought, is clearly not appealable. It neither affects a substantial right, nor is it a final order in a summary application in an action after judgment, within the provisions of the 11th section of the Code.
First. It does not affect a substantial right. 1. If an execution, issued after five years from the time of perfecting judgment without leave of the court, be absolutely void, there is no pressing necessity for setting it aside. It would constitute no defence to an action against the party issuing *Page 152 it for any act or proceeding under it. The defendant would have his action for any interference with his property or person under it. This would afford sufficient protection to his rights. 2. If the execution is voidable merely, whether it ought to be set aside or not is a question necessarily to be addressed to the discretion of the court below. Neglect on the part of the defendant to make his motion with due diligence would constitute a sufficient reason for denying the motion in such case. And whether due diligence had been used, or whether any apparent laches had been sufficiently excused, must, from the nature of things, be deemed merely matters of practice in that court. This court cannot review the discretion vested in that court in such matters.
Secondly. It is not a final order in a summary application in an action after judgment. If any question of practice can be settled in this court by adjudication, this is one. It was decided in Sherman v. Felt (3 How. Pr. R., 425), that that provision of the Code did not refer to an ordinary motion to set aside proceedings for irregularity, or as a matter of favor, but that it referred to an application assuming the validity of the judgment, and based upon it, which itself might terminate in a final order in the nature of a judgment, such as an application for surplus moneys upon a sale in a foreclosure suit, or for an order of sale for non-payment of installment becoming due subsequent to the judgment. The same construction was given to that section of the Code, in Dunlop v. Edwards (3 Comst., 341), Humphrey v. Chamberlin (1 Kern., 274), and Jones etal. v. Derby (16 N.Y., 242).
These motions, to set aside proceedings for irregularity or as a matter of favor, are left by the Code to the control of the court in which the action is pending. To entertain appeals to this court from orders of that kind would soon overwhelm the court with that kind of business alone. This consideration would of course not justify this court in *Page 153 disregarding the requirements of the statute, but it should not be overlooked in an inquiry in regard to the proper construction of that statute.
The appeal should be dismissed with costs.
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