By the Court The motion to dismiss the appeal in this case is well made. The order below opening the judgment decided simply a question of practice as to the service of the answer. It in no way “ involved the merits of the action.” Nor can it be said to be “ a summary application in an action after judgment,” in the sense of subdivision six, of section twelve, {marginal), on pages 621-2, of the New Statutes. An order to fall within that subdivision must be one which is made in some proceeding which recognizes the judgment, and is predicated upon the existence of it, and not an order in a proceeding which is aimed to set it aside. The order for these reasons is clearly not appealable. See 3 How. P. R. 357, 425,; 10 How. Pr. R. 89; 3 Code Rep. 141.

The appeal is dismissed.