Hanover Fire Insurance v. Tomlinson — 37 N.Y. Super. Ct. 221

Majority

p. 221

HANOVER FIRE INSURANCE COMPANY, Plaintiff and Respondent, v. THEODORE E. TOMLINSON, Defendant and Appellant.

Headnote

An order directing the answer to be made more definite and certain does not involve the merits, nor does it affect a substantial right in the action, and cannot be reviewed on appeal.

An order striking out a distinct defense as irrelevant does not affect a substantial right, and is appealable.

In the case at bar, the order appealed from, contained a direction that the answer should be made more definite and certain, and also ordered one of the defenses stricken out as irrelevant. ■

The general term considered only the latter portion of the order on the appeal, and affirmed the same.

Before Sedgwick, Van Vorst and Speir, JJ.

Decided April 4, 1874.

p. 222

Tomlinson, Winsor & Marsh, for appellant.

Tracy, Olmstead & Tracy, for respondent.

This is an appeal from an order made at special term, requiring one of the defenses in the answer to be made more definite and certain by amendment, by stating when and where the agreement alleged in said defense was made, and who were the parties to same. By the same order one of the defenses in the action was stricken out as irrelevant.

So much of the order as directs the answer to be made more definite and certain does not involve the merits, nor does it affect a substantial right, and cannot be reviewed on appeal (Geis v. Loew, 15 Abb. Pr. N. S. 94).

But the striking out of a distinct defense as irrelevant, does affect a substantial right, and an appeal may be taken from the order by which it is directed (Trustees of Penn Yann v. Forbe, 8 How. 285 ; Fasnacht v. Stehn, 53 Barb. 650 ; Dixon Crucible Co. v. New York Steel Works, 57 Id. 447). In this last case the answer was stricken out as a frivolous, but the same considerations are involved. For if a separate answer and defense be stricken out, the defendant loses a right to such portion of his pleading, and can give no evidence under it on the trial.

But on this appeal we can come to no other conclu- , sion than that reached by the judge below, that the sixth defense is irrelevant.

By it the defendant seeks to show that an order made by the supreme court, giving the plaintiff leave to bring this action, was made upon insufficient cause.

Such inquiry could not be allowed on the trial of this action. Yor can the sufficiency of the affidavits and papers which were before the judge of the supreme court, who made the order granting such leave, be re

p. 223

viewed here. .Ifc is enough that the order was made, and its validity cannot be questioned collaterally as long as it stands unreversed. If the order was granted upon insufficient affidavits, the defendant should have appealed from it, or otherwise tested its validity in the court where the order was made.

The order appealed from is affirmed, with costs.

Sedgwick and Speijí, JJ., concurred.

Cases cited

Fasnacht v. Stehn 53 Barb. 650 N.Y. Sup. Ct. 1869-01-04 p. 222