LEWIS a. GRAHAM.
Supreme Court, First District; General Term,
February, 1863.
Appealable Order.—Irregularity.
An order which, among other things, refuses leave to come in and defend after judgment by default, is not appealable as to that part of it.
It is sufficient ground for denying a motion to set aside a judgment for irregu- ' larity, that the irregularity complained of is not specified in the notice of motion.
Where the irregularity is not specified in the notice, and the motion is denied, the court, on appeal, may presume that the motion was denied on the ground of the defect in the notice.
Appeal from an order denying a motion to vacate a judgment for irregularity, or for leave to defend.
The action was brought by Thomas Lewis against Charles Graham, Andrew and Bobert McKenna, and others. The summons had been served on the defendants McKenna by publication, and deposit in the post-office. The irregularities complained of related to errors in publication, and defects in the affidavit of service.
Gideon L. Walker, for the appellants.
I. Francis C. Cantine, for the respondent.
The order, so far as it denies leave to come in and defend, is not appealable.
II. The motion to vacate for irregularity was properly denied, inasmuch as the irregularities complained of were not specified in the notice. (Supreme Ct. Rule 39; Roche a. Ward, 7 How. Pr., 416; Baxter a. Arnold, 9 Ib., 445.)
Sutherland, P. J.
The order appealed from, so far as it denies leave to the defendants Andrew McKenna and Bobert McKenna, to come in and defend the action, is not appealable, *127especially as the order gives them leave to move under section 135 of the Code, on payment of $10 costs of the motion.
The order to show cause, which brought before the court the motion in which the order appealed from was made, does not specify the grounds of irregularity, as required by the 39th rule of this court. This would have been a sufficient ground for denying the motion to set aside the judgment for irregularity, and we cannot say from the papers that the motion was not denied on that ground.
The order appealed from should be affirmed, with costs.
Ingeaham and Cleeke, JJ., concurred.