
    MARY C. WHEELER, Respondent, v. THOMAS F. TRACY, Appellant.
    
      Discretion—appeal from erroneous conditions in order denying motion for judgment on answer as frivolous.
    
    An appeal lies from that part of an order imposing a condition, when the party is entitled to his order as a matter of right. B. g., where the answer, after attempting to put in issue allegations of the complaint, makes, in sufficient form, a defense founded on fraud, and a motion for judgment is made thereon as frivolous, and an order is granted denying the motion, upon condition that an amended answer, containing only the defense of fraud, be served, an appeal lies from that part of the order constituting the condition.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided June 6, 1881.
    Appeal from part of an order denying motion for judgment on answer as frivolous.
    
      Deane & Chamberlin, for appellant, urged:
    The plaintiff moves to dismiss this appeal, because it is taken from only a part—the conditional part—of the order. In answer to this:—First. The Code (§ 1800) expressly permits an appeal from a, specific part of an order. Second. An order denying a motion for judgment on an answer as frivolous is not appealable (Code, § 537).
    In the case of Tribune Association v. Smith (8 J. & S. 81), it was held by this court that ‘1 the part of the order appealed from could not be taken from its relation to the rest of the order, and the defendant should have appealed from the whole.” In that case, however, the order, which gave leave to amend on payment of costs, was discretionary, and the leave granted was a favor, and the court had power to impose the terms. But this order was one which the court was compelled to grant as an absolute right, and in granting to the defendant this right, it had. no power or authority to limit it in any manner, nor to couple it with any conditions whatever. Where an order i& discretionary, or is granted as a matter of favor, the court may impose a condition, but where there is no discretion and no favor, and the order is granted as a matter of right, the court has no power to impose any conditions whatever (Anderson v. Rome, W. & O. R. R., 54 N. Y. 334, 343).
    Therefore, the defendant has the right to appeal, from that part of this order which, under the form of a condition, is virtually a separate and independent order, nullifying the part to which the defendant was entitled, and which the court granted.
    
      Samuel It. Taylor, attorney, and Charles C. Bull, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The answer in this case, after attempting to put in issue several allegations of the complaint, made, in sufficient form, a defense based upon alleged fraudulent representations of the plaintiff. The plaintiff moved for judgment on the answer as frivolous. The order-made on the motion was, that the motion be denied, on condition that the defendant servean amended answer, which should contain only that part of the original answer which alleged fraud.

The defendant appealed from that part of the order which constituted the so-called condition. I am of opinion that the appeal lies, because the defendant was entitled to have the motion denied unconditionally. The effect of striking out the condition will be, to .give the defendant what he is entitled to, as matter of right, and not of discretion. If it had been matter of discretion, appealing from a condition would result in giving as an absolute right, something that has not that character.

It seems to be clear that the motion should have been denied, because, with the defense of fraud standing in the answer, the plaintiff was not entitled to judgment.

Order reversed with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.  