Hughes v. Mercantile Mutual Insurance

10 Abb. Pr. 37, 41 How. Pr. 253

• Court: New York Court of Common Pleas
• Decided: January 15, 1871
• Status: Published

Opinion

By the Court.—Loew, J.

This action was brought to recover the sum of five thousand dollars upon a policy of marine insurance. The defendant made a motion at special term, to strike out certain allegations contained in the complaint, as irrelevant.

The motion was denied, and the defendant thereupon brought this appeal.

If the order of the special term in this case can be reviewed at all, it must be under subdivision 3 of section 349 of the Code, which provides that an appeal may be taken to the general term from an order, when it involves the merits of the action, or some part thereof, or affects a substantial right.

It seems clear that the order appealed from, does not involve the merits of the action or any part thereof, especially as the only ground upon which the defendant asks that the matters complained of be stricken out, is their irrelevancy.

Nor can it be said that the order affects a substantial right of the defendant, within the meaning of the Code, as the denial of the motion lay entirely in the discretion of the judge at special term (Field v. Stewart, 8 Abb. Pr. N. S., 193).

Having came to the conclusion that the order in question is not appealable, and cannot, therefore, be reviewed by us, it will be unnecessary to consider whether the matter sought to be stricken out was irrelevant or not.

Appeal should be dismissed with costs.

Robinson and Larremore, JJ., concurred.