Legal Opinion

McCoun v. New York Central & Hudson River Railroad

New York Court of Appeals

Decided November 12, 1872PublishedCited by 11 opinions

Appeal from an order of the General Term of the Supreme Court in the fourth judicial department, affirming an order of Special Term, denying a motion to set aside the summons and complaint upon the" ground of irregularity. The action was brought to recover a penalty or forfeiture under the statute to prevent extortion by railroad companies. (Chap. 185, Laws of 1857.) The summons was in the form prescribed by subdivision 1 of the 129th section of the Code of Procedure.

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Appeal from an order of the General Term of the Supreme Court in the fourth judicial department, affirming an order of Special Term, denying a motion to set aside the summons and complaint upon the" ground of irregularity. The action was brought to recover a penalty or forfeiture under the statute to prevent extortion by railroad companies. (Chap. 185, Laws of 1857.) The summons was in the form prescribed by subdivision 1 of the 129th section of the Code of Procedure. The summons and complaint were served together. An action to recover a penalty or forfeiture given by statute is not “ an…

1Opinion of the CourtAllen, J.

The order in this and several hundred other actions now before us and depending upon thé result of this appeal is not appealable. Only such orders arising upon any interlocutory proceedings, or upon any question of practice, are appealable, as affect a substantial right and do not involve any question of discretion. (Code, § 11, sub. 4.) A departure from the Code in any particular, in the progress of an action, does not necessarily affect a substantial right. A strict and literal compliance with a statutory regulation is not necessarily of the substance of the remedy, or substantial in its…

2Cases cited4 opinions

  1. Wyman v. MitchellNew York Supreme Court · 1823
  2. Schermerhorn v. NobleCourt for the Trial of Impeachments and Correction of Errors · 1845
  3. Bander v. CovillNew York Supreme Court · 1825
  4. Jackson ex dem. Pioneer v. GarnseyNew York Supreme Court · 1824

3Cited by11 opinions

  1. Morley v. Lake Shore & Michigan Southern Railway Co.Supreme Court of the United States · 1892
  2. O'Brien v. . YoungNew York Court of Appeals · 1884
  3. Brown v. PondDistrict Court, S.D. New York · 1880
  4. In re BermanAppellate Division of the Supreme Court of the State of New York · 1935
  5. H. Hackfeld & Co. v. CoerperHawaii Supreme Court · 1908

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