Geis v. Loew

15 Abb. Pr. 94, 4 Jones & S. 190

Opinion

Van Vorst, J.

Footnotes

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*

This is an appeal from an order made by a judge at special term, directing that the complaint be made more definite and certain, by stating in detail the several proceedings by or on behalf of the mayor, aldermen and commonalty of the city of Slew York, or the common council or officers of the corporation, and all acts or proceedings taken by them relating to the imposition of certain assessments by the municipal authorities, mentioned in the complaint.

The action being brought to recover the amount of the assessments, under the defendant’s covenant to the plaintiff against incumbrances, it is objected by the defendant’s counsel that the order is not appeable.

The order in question neither involves the merits of the action, nor does it affect a substantial right.

By the merits are to be understood the strict legal rights of the parties, as distinguished from mere questions of practice in the reformation of pleadings, and by a substantial right is to be understood a question of right involved in the issues (Salters v. Genin, 10 Abb. Pr., 478; S. C., 19 How. Pr., 233).

This is simply a question of the form of a pleading, and whether or not it should set up with more detail certain special proceedings of the municipal government. It can in no manner prejudice either the plaintiff’s claim, or his ultimate right to recover.

It has been repeatedly held, and as we think correctly, that orders of an analogous character with regard to pleadings are not appealable.

Besides, refusing to strike out matter as irrelevant and redundant do not involve the merits, and are not appealable (Murphy v. Dickinson, 40 How. Pr., 66; Hughes v. Mercantile Mut. Ins. Co., 10 Abb. Pr. N. S., 37).

An order denying a motion to strike out a pleading as frivolous is not appealable (Dixon Crucible Co. v. New York City Slate Works, 57 Barb., 447).

An order denying a motion to require plaintiff to make his complaint more definite and certain is not appealable (Field v. Stewart, 8 Abb. Pr. N. S., 193; S. C., 41 How. Pr., 95; Murphy v. Dickinson, supra).

If the defendant could not have appealed had his motion been denied, no logical reason can be assigned why the plaintiff should appeal it is when granted.

In this view of the subject, it is not necessary for us to inquire or decide as to whether or not the plaintiff’s complaint was required to be made more certain by the amendments mentioned in the order* appealed from. This was decided by the judge at special term.

The appeal should be dismissed, and the order should be affirmed, with costs.

Present, Freedman, Curtis and Van Vorst, JJ.