
    SUPREME COURT.
    Mary Whitney agt. Waterman & Whitney.
    An appeal does not lie from the special to the general term, upon an order refusing to strike out of a pleading alleged immaterial, impertinent or scandalous averments; because it cannot involve the merits, (Code, § 349.) An order striking out such averments may be the subject of appeal, where it appears that such matter, stricken out, involves the merits.
    
      New York General Term, May 21, 1850,
    
      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.
    J. E. Burrill, Jr., for appellant.
    
    C. O’Conor, for respondents,
    
    objected that the order of the special term was not the subject of appeal, as it did not involve the merits.
   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.  