Field v. Stewart — 41 How. Pr. 95

Majority

p. 95

N. Y. SUPERIOR COURT.

Henry M. Field, plaintiff agt. James Stewart and John H. Masterton, defendants.

Headnote

ZNo appeal lies from an order denying a motion to compel a party to make his pleading more definite and certain, and to strike out irrelevant and redundant matter contained therein.

General Term, January, 1870.

Before Monell, Freedman and Spencer, JJ.

Field & Shearman, attorneys for plaintiff and respondent.

C. W. Bangs, attorney for defendants and appellants.

This is an appeal from an -order made at special tern denying the motion of the defendants to compel the plaintiff to make his complaint more -definite and certain, to state two causes of action, alleged to be contained in one count, separately, and to number the ¡same, and to strike out irrelevant and redundant matter therefrom.

The denial of the motion was a matter resting in the discretion of the judge below, and relates to a mere matter of practice or form of proceeding; it does not involve the merits of the action or some part thereof, and the order, therefore, is not appealable. (Whitney agt. Waterman, 4 How., 313 ; St. John agt. West, 4 How., 329 ; Bedell agt. Stickles, 4 How., 433 ; Salters agt. Genin, 10 Abb., 478 , 19 How., 233 .)

Nor does the order, as made, affect a substantial right,

p. 96

for a party cannot be said to have a substantial right to what- a court has a discretion to grant or withhold. The legislature must have intended, by a substantial right, a fixed, determined right, independent of the discretion of the court, and of some value. Such a right must exist, and be injuriously affected by an order, to bring a case within the third subdivision of sec. 349 of the Code. (Tollman agt. Hinman, 10 How., 90 .)

The appeal should be dismissed with costs.

Monell, J.—I concur.

Spencer, J.—I concur.