Whitney v. Waterman & Whitney
New York Supreme Court
before Edmonds, Presiding Justice; Edwards cmcZMiTCHELL, Justices.—The plaintiff moved, at special term, to strike out certain parts of the answer because they were immaterial, impertinent or scandalous. On the motion the question was sent to a referee, who reported, allowing four exceptions and disallowing the residue of the exceptions, some nineteen in number.
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before Edmonds, Presiding Justice; Edwards cmcZMiTCHELL, Justices.—The plaintiff moved, at special term, to strike out certain parts of the answer because they were immaterial, impertinent or scandalous. On the motion the question was sent to a referee, who reported, allowing four exceptions and disallowing the residue of the exceptions, some nineteen in number. His report was confirmed at special term, and from so much of the order as disallowed the exceptions to the answer, the plairitiff appealed to the general term.
1Opinion of the Court
Edmonds, Presiding Justice, stopped the counsel in arguing the merits of the exceptions, and said that the court entertained no doubt that the order at special term was not the subject of an appeal. The motion below was to strike out certain parts of the answer because they were not material to the matters in controversy; and surely an order refusing to strike out immaterial averments, could not be said to “involve the merits of the action.”
An order, refusing to strike out such averments in a pleading, can in no case be the subject of appeal, because it cannot involve the merits within…
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