
    Stephen H. Emmens et al., Appellants, v. The McMillan Co., Respondent.
    (Supreme Court, Appellate Term,
    November, 1897.)
    An order, refusing to strike irrelevant matter froín á pleading, is not appealable to the Appellate Térm.
    As the granting of an order, striking irrelevant of redundant matter from a pleading, rests in the discretion, of the court (Code Civ. Pro., § 545), á denial of such a motion does not involve the merits nor affect a substantial right, and consequently is not appealable, under Code Civ. Pro., § 1391, from the City Court Of New York to the Appellate Term of the Supreme Court.
    Emmons v. McMillan Co., 20 Misc. Rep. 400, dismissed.
    Appeal from an order of the General Term of the City Court of Few York- which reversed an order granted at Special Term' striking out certain paragraphs of the answer as irrelevant and redundant. Action to recover damages for the breach of an advertising contract;
    
      Kronfeld & Harris, for appellants.
    Lawrence Godkin, for respondent.
   Bischoff, J.

A party may not insist as of right to have irrelevant or redundant matter expunged from the other’s pleading upon a motion for an order to such effect. The granting of the order rests in the discretion of the court (Code Civ. Pro., § 545; Town of Essex v. N. Y. & Can. R. R. Co., 8 Hun, 361; Homan v. Byrne, 14 Weekly Dig. 175), and. the moving party may be remitted to his objections upon the trial to the introduction of evidence in support of the alleged irrelevant matter.

A denial of such a motion does not involve the merits of the action or affect a substantial right (Field v. Stewart, 41 How. Pr. 95; S. C., 8 Abb. Pr. [N. S.] 193; People v. N.Y. C. R. R. Co., 29 N. Y. 418, 421), and so the order is not appealable to this court from the City Court. Code Civ. Pro., § 1391.

Neresheimer v. Bowe, 11 Daly, 306, cited by counsel for the appellants, determines no more than that an appeal from the order lies to the General Term of the same court as in the case of other orders involving the exercise of judicial discretion. Sprague v. Dunton, 14 Hun, 490; Peart v. Peart, 48 id. 79.

The appeal should be dismissed, with costs.

Daly, P. J., and McAdam, J., concur.

Appeal dismissed, with costs.  