Tabor v. Gardner — 41 N.Y. 232

Majority

p. 232

Benjamin F. Tabor, Appellant, v. Noah H. Gardner, and others, Respondents.

Headnote

An order of the General Term, reversing an order at Special Term, ' striking out an answer, is not appealable to this court. It was not previous to 1869, and the amendment of that year, authorizing an appeal from an order striking out an answer, is not applicable.

It has been settled by repeated adjudication, that the last clause of subdivision four of section eleven, of the Code, merely regulates the hearing of appeals, and in no way enlarges the right of appeal, or extends the jurisdiction of this court.

In this action, an order was made in the Superior Court, of the city of Buffalo, striking out a part of the answer of the defendant, on the ground that the same was not sufficiently verified. That order was reversed by the General Term of the same court, and it is from the determination of the General Term, that the plaintiff has appealed, and from that only could he appeal to this court.

The appeal is, therefore, not from an order striking out an answer, or part of an answer, but from an order in substance and in actual effect refusing to strike out.

From such an order no appeal lies to this court. ¡Neither before the amendment of 1869, nor since, did any clause of

p. 233

section eleven of the Code, defining our jurisdiction, embrace such an order. The last clause of subdivision four of that section, has been frequently misunderstood, but has been again and again held by this court, to regulate the hearing of appeals from orders, of which this court had jurisdiction, by power of tiie preceding subdivisions and clauses of the section, and not to extend that jurisdiction to other orders not previously named.

The appeal must be dismissed, with costs.

All the judges concurring, appeal dismissed.

Lyman R. Bass, for the appellant.

George Wadsworth, for the respondent.