Emmens v. McMillan Co.

21 Misc. 638, 47 N.Y.S. 1099

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1897
• Status: Published

Opinion

Bischoff, J.

A party may not insist as of right to have irrelevant or redundant matter expunged from the other’s pleading upon a motion for an order to such effect. The granting of the order rests in the discretion of the court (Code Civ. Pro., § 545; Town of Essex v. N. Y. & Can. R. R. Co., 8 Hun, 361; Homan v. Byrne, 14 Weekly Dig. 175), and. the moving party may be remitted to his objections upon the trial to the introduction of evidence in support of the alleged irrelevant matter.

A denial of such a motion does not involve the merits of the action or affect a substantial right (Field v. Stewart, 41 How. Pr. 95; S. C., 8 Abb. Pr. [N. S.] 193; People v. N.Y. C. R. R. Co., 29 N. Y. 418, 421), and so the order is not appealable to this court from the City Court. Code Civ. Pro., § 1391.

Neresheimer v. Bowe, 11 Daly, 306, cited by counsel for the appellants, determines no more than that an appeal from the order lies to the General Term of the same court as in the case of other orders involving the exercise of judicial discretion. Sprague v. Dunton, 14 Hun, 490; Peart v. Peart, 48 id. 79.

The appeal should be dismissed, with costs.

Daly, P. J., and McAdam, J., concur.

Appeal dismissed, with costs.