¶1[delivered an opinion to the effect that the decree of November 9, 1863, could not be regarded as final until it was ascertained by the court whether the conditions upon which final judgment was to be given had been complied with or not, citing Dan. Ch. Pl. & Pr. 1201-6, Seat. on Decr. 130. The court, however, did not pass on this question. In the residue of his opinion the learned judge proceeded at follows:]
¶2But, waiving this question, and treating the decree of Chief Justice Robertson as final, the subsequent application for judgment was not a special proceeding, but simply a motion, like any other motion after judgment to set aside the judgment and allow the defeated party to interpose his claim or defense —a motion always addressed to the discretion of the court, and not the subject of review in this court. If it leads to a rehearing of the cause upon the merits, then, without doubt, it would be reheard before the same judge who heard it before. It is not necessary now to decide whether the court can grant a rehearing in an equity action, except on appeal to the general term; but the authority to set'aside the iudo-ment or decree in a nroner case, *282as a matter of favor, is expressly given by the Code. Regarding the proceedings before Chief Justice Robertsoít as a motion after judgment, it must be governed by the same rule as ordinary motions. It involves only a question of practice. It is claimed by the appellants’ counsel, that the order in question involved a substantial right. It is said that the order prevents Lee from reaching, by his supplementary proceedings, the Francis Morris judgment against Niles. But these supplementary proceedings were taken pendente lite, and, of course, are subject to any decree which may be make in this action. I am of opinion, however, that the decree of July or August, 1863, although incorporated into the judgment roll, so called, is not to be regarded as a final determination of the action, and for that reason the subsequent order of the same judge is not appealable. Indeed, this last order is not final, although it may lead to a final judgment in favor of the plaintiff, instead of the defendants. The question as the correctness of the original decree is not now before us.
¶3Without passing on the merits of the order, all the judges concurred in dismissing the appeal on the ground that the order was not appealable.
¶4Appeal dismissed, with costs.