Whitney v. Waterman & Whitney
This text of 4 How. Pr. 313 (Whitney v. Waterman & Whitney) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Edmonds, Presiding Justice, stopped the counsel in arguing the merits of the exceptions, and said that the court entertained no doubt that the order at special term was not the subject of an appeal. The motion below was to strike out certain parts of the answer because they were not material to the matters in controversy; and surely an order refusing to strike out immaterial averments, could not be said to “involve the merits of the action.”
An order, refusing to strike out such averments in a pleading, can in no case be the subject of appeal, because it cannot involve the merits within section 349 of the code. An order striking them out, may be the subject of an appeal, when it shall be made to appear that the matter ordered to be stricken out does involve the merits; but it is not easy to perceive how an order leaving in matter impertinent, scandalous or immaterial, can be said to involve the merits. In that respect, the decision at the special term must be final.
This appeal must therefore be dismissed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
4 How. Pr. 313, 1850 N.Y. Misc. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-waterman-whitney-nysupct-1850.