General
HUGHES against THE MERCANTILE MUTUAL INSURANCE COMPANY
10 Abb. Pr. 37·New York Court of Common Pleas·1871·NY
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Opinion
HUGHES against THE MERCANTILE MUTUAL INSURANCE COMPANY.
New York Common Pleas;
General Term, January, 1871.
Appealable Order.
An order made at special term, denying a motion to strike out allegar tions from a complaint as irrelevant, is not appealable.
Appeal from an order made at special term.
The facts sufficiently appear in the opinion of the ..court.
Scudder & Carter, for the defendants, appellants.
R. P. Lee, for the plaintiffs, respondents.
To the same effect, in the supreme court, is Crucible Co. v. Steel Works, 9 Abb. Pr. N. S.. 195. As to the subject of appealable orders generally, see Tauton v. Groh, 8 Abb. Pr. N. S., 385, and note, where the authorities are collected.
[MAJORITY — By the Court.—Loew, J.]
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.