Whitney v. Waterman & Whitney

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 section 349 of the code. An order striking them out, may be the subject of an appeal, when it shall be made to appear that the matter ordered to be stricken out does involve the merits; but it is not easy to perceive how an order leaving in matter impertinent, scandalous or immaterial, can be said to involve the merits. In that respect, the decision at the special term must be final. This appeal must therefore be dismissed.