Field v. Stewart

8 Abb. Pr. 193, 41 How. Pr. 95

Opinion

By the Court.—Freedman, J.

This is an appeal from an order made at special term denying the motion of the defendants to compel the plaintiff to make his complaint more definite and certain, to state two causes of action, alleged to he contained in one count, sepa rately, and to number the same, and to strike out irrelevant and redundant matter therefrom. The’denial of the motion was a matter resting in the discretion of the judge below, and relates to a mere matter of practice or form of proceeding; it does not involve the meiits of the action, or some part thereof, and the order, therefore, is not appealable (Whitney v. Watterman, 4 How. Pr., 313; St. John v. West, 4 Id., 329; Bedell v. Stickles, 4 Id., 433; Salters v. Genin, 10 Abb. Pr., 478; 19 How. Pr., 233). Nor does the order, as made, affect a substantial right; for a party cannot be said to have a substantial right to what a court has a discretion to grant or withhold. The legislature must have intended, by a substantial right, a fixed, determined right, independent of the discretion of the court, and of some value. Such a right must exist, and be injuriously affected by an order, to bring a case within the third subdivision of § 349 of the Code (Tallman v. Hinman, 10 How Pr., 90).

The appeal should be dismissed with costs.

Mokell and Spebceb, JJ., concurred.

Order accordingly.