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Geis v. Loew

36 N.Y. Super. Ct. 190 4 Jones & S. 190 Court N.Y. Super. Ct. Decision date 1873-06-28 English

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p. 190
FRANCIS J. GEIS, Plaintiff and Appellant, v. FREDERICK W. LOEW, Defendant and Respondent.
Before Freedman, Curtis, and Van Vorst, JJ.
Decided June 28, 1873.

Headnote

An older that the corrjplaint shall be amended, and made more definite and certain, so that the same shall state fully in detail, and with particularity, the several proceedings by or in behalf of the mayor, aldermen, and commonalty of the city of New York, etc., taken and relating to the imposition of assessments mentioned in the complaint, is not appealable.
Appeal from an order.
Howard Ellis, attorney for appellant.
Samuel J. Glassey, of counsel.
Frederick Swarts, attorney for respondent.
p. 191
John M. Scribner, Jr., of counsel.

This is an appeal from an order made hy a judge at Special Term, directing that the complaint be made more definite and certain, by stating in detail the several proceedings by or on behalf of the mayor, aldermen, and commonalty of the city of Hew York, or the common council or officers of the corporation, and all acts or proceedings taken by them relating to the intention of certain assessments by the municipal authority, mentioned in the complaint.

The action being brought to recover the amount of the assessments, under the defendant’s covenant to the plaintiff against encumbrances.

It is objected by the defendant’s counsel, that the order is not appealable.

The order in question involves neither the merits of the action, nor does it affect a substantial right.

By the merits are to be understood the strict legal rights of the parties as distinguished from mere questions of practice in the reformation of pleadings, and by a substantial right is to be understood a question of right insolved in the assizes (Salters v. Genin, 10 Abb. 478 ; S. C. 19 How. 233 ).

This is simply a question of the form of a pleading, and whether or not it should set up with more detail certain special proceedings of the municipal government. It can in no manner prejudice either the plaintiff’s claim or his ultimate right to recover.

It has been repeatedly held, and as we think correctly, that orders of an analogous character with regard to pleadings, are not appealable. Orders refusing to strike out matter as irrelevant and redundant, do not involve the merits and are not appealable (Murphy v. Dickinson, 40 How. Pr. 66 ; Hughes v. Mercantile Mut. Ins. Co., 10 Abb. Pr. N. S. 37).

An order denying a motion to strike out a pleading

p. 192
as frivolous,' is not appealable (Dixon Crucible Co. v. The New York City Steel Works, 57 Barb. 447 ).

An order denying a motion to require plaintiff to make his complaint more definite and certain, is not appealable (Feild v. Stewart, 8 Abb. Pr. N. S.193; S. C. 41 How. Pr. 95 ; Murphy v. Dickinson, supra).

If the defendant could not have appealed, had his motion been denied, no logical reason can be assigned, why the plaintiff should appeal when granted.

In this view of the subject, it is not necessary for us to inquire or decide as to whether or not the plaintiff’s complaint has required to be made more certain by the amendments mentioned in the order appealed from. . It is not decided by the judge at Special Term. •

The appeal should be dismissed with costs.

Freedman and Curtis JJ. concurred.

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