Watt v. Watt

30 How. Pr. 345

Opinion

By the court, Robertson, Ch. J.

The order appealed from in this case is merely one to show cause, and does not dispose of the rights of any party. It is a mere substitute for a notice of motion, shortening the time, which rests in the discretion of the court (Code, § 402, rule 39). It does not affect the merits and is not final, and therefore, is not appealable (Code, § 349). The cause to be shown by such order is against striking out certain allegations in the defendant’s answer, consisting of an offset and a payment, in case he should fail to furnish by a certain day the particulars thereof. Possibly the plaintiff may have mistaken his remedy as to the set-off which seems to be provided for by the 158th section of the Code, by a simple demand, and in case of refusal, exclusion of evidence on the defendant’s part in support thereof. So, too, payment as a defence may be claimed to be entire, and not made up of several partial payments, which are only circumstances in mitigation of damages until the whole is paid, and, therefore, need not be pleaded. These are matters for consideration on' hearing the order to show cause.

But the present appeal cannot be sustained, and must be dismissed, with costs.