
    NEW YORK COMMON PLEAS.
    John Hughes agt. The Mercantile Mutual Insurance Company.
    An order of the special term, denying a motion to strike out certain allegations of the complaint as irrelevant, is not appealable to the general term.
    
      General Term, January, 1871.
    
      Before Robinson, Loew and Larremore, JJ.
    
    Appeal from an order made at special term. The facts sufficiently appear in the opinion of the court.
    Scudder & Carter, for defendants and appellants.
    
    R. P. Lee, for plaintiff and respondent.
    
   By the court, Loew, J.

This action was brought to recover the sum of $5,000, upon a policy of marine insurance. The defendant made a motion, at special term, to strike out certain allegations contained in the complaint as irrelevant.

The motion was denied, and the defendant thereupon brought this appeal. If the order of the special term in this case can be reviewed at all, it must be under subd. 3 of sec, 349 of the Code, which provides that an appeal may be taken to the general term from an order, “When it involves the merits of the action, or some part thereof, or affects a substantial right.” It seems clear that the order appealed from does not involve the merits of the action, or some part thereof, especially as the only ground upon which the defendant asks that the matters complained of should be stricken out, is their irrelevancy. Nor can it be said that the order affects a substantial right of the defendant, within the meaning of the Code, as the denial of the motion lay entirely in the discretion of the judge at special term (Field agt. Steward, 8 Abb., N. S., 193).

Having come to the conclusion that the order in question is not appealable, and cannot therefore be reviewed by us, it will be unnecessary to consider whether the matter sought to be stricken out was irrelevant or not.

The appeal should be dismissed with costs.

Robinson and Labrémose, JJ., concurred.  