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.