¶1This is an appeal from an order of the Supreme Court, setting aside a judgment. The third subdivision of section eleven of the Code gives this court jurisdiction to review on appeal an actual determination of the Supreme Court at general term, in a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. Upon the latter clause of this subdivision, which alone can by possibility extend to the present case, the settled construction of this court is, that an order to be appealable must be based upon the judgment and assume its validity. It was first determined in Sherman v. Felt (2 Comst., 186); it was *246 reiterated in Dunlop v. Edwards (3 Comst., 341); and these cases were approved in Humphrey v. Chamberlain (1 Kern., 274).
¶2All the judges concurring,
¶3Appeal dismissed with costs.