Goldberg v. . Utley

60 N.Y. 427, 1875 N.Y. LEXIS 198

Opinion

I think this order is not appealable to this court. First. We have no evidence that the motion was not decided upon the merits, and if so, it was discretionary with the court below. The ground of the decision is not stated in the order, and the memorandum is not evidence. Second. But if the memorandum is regarded the motion involved only the question whether there was a waiver, which like laches is never appealable, but is regarded as discretionary, and the construction of the order of the judge is of the same character. If the question was before us it seems to me clear that the right to make this motion was reserved. Third. But the principal ground for holding it not appealable is that it does not involve a substantial right. It is true the Code requires causes of action to be separately stated and numbered, but this is a mere question of practice over which the court below has control, and unless it appears that the party will or may be deprived of some legal right by the action of the court, it must be regarded as formal and not substantial. The Code also requires pleadings to be folioed, but an order denying a motion to have it done would not be appealable here. If the complaint contains several causes of action improperly united contrary to the Code as is claimed, the vice may be reached by a demurrer, and the failure of the plaintiff to state them separately and number them would not be an answer to it, nor would a failure to move to correct the complaint in this respect defeat the effect of a demurrer. The plaintiff cannot deprive the defendant of the benefit of a demurrer upon this ground by omitting to number his causes of action. A substantial remedy cannot be prevented by a neglect to observe the rules of practice, nor in a case like this would the defendant be regarded as waiving such remedy by not making this motion.

The case of Bass v. Comstock (38 N.Y., 21), holds that a demurrer will not lie to a complaint containing different causes of action, which may be united merely because they are not separately stated and numbered, but I know of no authority against interposing a demurrer, when the causes of action areimproperly united, although not separately numbered. The two cases are quite different. The one is formal and discretionary, the other is substantial and involving a legal right.

The appeal must be dismissed.

All concur.

Appeal dismissed.