
    FIELD against STEWART.
    
      New York Superior Court; General Term,
    
    
      Jan., 1870.
    Appeal.—Discretionary Order.
    An order denying a motion to require plaintiff to make his complaint more definite and certain, or to state separately what defendant considers to be two causes of action, and to strike out matter objected to as irrelevant and redundant, is one which rests in the discretion of the court, and is not appealable.
    
    A substantial right,within the rule allowing appeals, is a fixed, determined right, independent of the discretion of the court, and of some value.
    Appeal from an order.
    This action was brought by Henry M. Field against James Stewart and John H. Masterton.
    
      The complaint alleged that the defendants contracted to supply mason work and materials in the erection of a dwelling for plaintiff; that they were skilled mechanics, while he had little knowledge of -the subject; that they misiepresented the quality of the "building stone, and induced him to designate in the contract what was an inferior quality, intentionally deceiving him thereby; that they agreed to use the "best materials and workmanship ; "but had used poor materials and done the work "badly, and by reason thereof plaintiff was damaged five thousand dollars. It also alleged that defendant Stewart was sueing plaintiff in the superior court (claiming also as assignee of Masterton) to recover moneys alleged to be due on the contract; that1 the fraud and claim for damages above alleged could not be set up in that action, because Masterton was not a party; and that plaintiff would suffer great injustice if that action was brought to trial; that Stewart was not responsible, and might not be able to respond in damages.
    Wherefore plaintiff asked judgment; 1. For damages ; 2. Enjoining Stewait from prosecuting his-action.
    The defendants moved, at special term, to compel plaintiff to amend the complaint, by stating- the causes of action separately and numbering them, so as to make it appear whether he sued for damages for inducing plaintiff to enter into the contract, or for nonperformance ; or to compel plaintiff to elect between these causes of action ; or if such motion should not be granted, then, if the complaint was intended to set forth a cansé of action for non-performance, that the allegations respecting fraud and deceit,' and those respecting the cross action by Stewart, be struck out.
    After argument at special term the motion was denied by Mr. Justice Fithian; and the defendants appealed.
    
      F. N. Bangs, for the defendants, appellants.
    I. The complaint contains two causes of action ; one for fraudulently inducing plaintiff to enter into a contract, and another for not performing the contract (Sweet v. Ingerson, 12 How. Pr., 331; Springsteed v. Lawton, 14 Abb. Pr., 328).
    II. In the same complaint, therefore, plaintiff endeavors both to repudiate and to enforce the same con-t tract; to hold defendants to liability for leading him into a contract, and to another liability for not performing that contract.
    III. If plaintiff wishes to state two such causes of action in one complaint, he must do it in the way and on the conditions prescribed by section 167 of the Code and Rule 19 of the supreme court, and the remedy for non-observance of these directions is by motion (Bass v. Clarke, 38 N. Y., 21).
    IV. Defendants are therefore entitled to an order compelling plaintiff to state the causes of action separately. ' But if the court should be of opinion that there is but one cause of action stated, then ¡
    V. If the fraud is the cause of action, allegations of non-performance are impertinent, irrelevant, and redundant, and should be struck out (Benedict v. Seymour, 6 How. Pr., 298).
    VI. If the non-performance of the contract is the cause of action, then the allegation of facts to show the invalidity of, and tending to avoid, the contract, are irrelevant, impertinent and redundant.
    
      John W. Sterling, for the plaintiff, respondent.
    I. There is but one cause of action. (1.) The injury suf- \ fered, not the remedy sought, is the cause of- action. And, where but one injury has been sustained, though , several remedies are asked, there is but one cause of ac- ' tion (Cahoon v. Bank of Utica, 7 N. Y. [3 Seld.], 486; Bidwell v. Astor Ins. Co., 16 N. Y., 263; Gooding v. McAlister, 9 How. Pr., 123). (2.) In this case only one injury has been sustained, to wit, the damage done to the house hy putting defective stone therein. This was effected partly by fraud in inducing the plaintiff to accept a had contract, and partly hy putting in even worse .stone than"" the contract allowed. The plaintiff, therefore, sues upon this one injury for the full damage ; and in order to avoid the effect of the contract, he shows that it was in part fraudulent. This amounts to hut one cause of action (Phillips v. Gorham, 17 N. Y., 270; Gooding v. McAlister, and other cases cited above). (3.) The allegations in respect to Stewart’s suit do not constitute a separate cause of action, hut only justify the demand for peculiar relief.
    II. The complaint is not indefinite in any respect. It does not claim damages for the fraud hy which the plaintiff was induced to sign the contract, hut only for the had stone and workmanship. It is, therefore, clearly definite in respect to the only point upon which the notice of motion charged it with indefiniteness ; and, this being so, the' court will not look further into the pleading (Stafford v. Brown, 4 Paige, 88; Currie v. Henry, 2 Johns., 433; 2 Tillinghast & S. Pr., 185).
    III. If several causes of action ate improperly united, defendant’s femedy is not by motion,' hut by demurrer (Code, § 144, subd. 5).
    IV. If defendants were right (as they are not) in supposing that a claim for damages for fraud was united with one for breach of contract, the two claims could nevertheless be united. Precisely such claims as the defendants suppose to he united here were united in Robinson v. Flint, 16 How. Pr., 240.
    V. The order is not appealable (4 How. Pr., 313, 432; Code, § 349).
    
      
      In Fillette v. Hermann (New York Superior Court; General Term, March, 1870), it was Meld, that an order refusing to strike out an answer and for judgment thereon, as frivolous, sham or irrelevant, is not appeasable.
      The action was brought by L. G-. Fillette against'Isaac Hermann.
      A motion was made by the plaintiff to strike out defendant’s answer as sham, and if not as sham, as frivolous and irrelevant. Judge Freedman, who heard the motion, denied the.same.
      The plaintiff appealed from the order thus made.
      The defendant moved to dismiss the appeal, upon the ground that the order was not appealable (Present, Justices Monell, McCunn and Jones).
      Motion granted, and appeal dismissed with costs.
      
        A. J. Requier, for the plaintiff.
      
        A. Blumenstiel, for the defendant.
      In the case of Van Clief v. Mersereatt {Supreme Court,'Second District; General Term, February, 1870), it was Held, 1. That when the appellant fails to serve his notice of appeal on the clerk in time, no appeal is taken, and although exceptions may have been filed in time, that alone does not amount to an appeal. 2. After the time to appeal has expired,, this court will not allow exceptions, theretofore duly filed, to be amended: so as to include a formal notice of appeal, and so as to perfect the appeal.Service of the notice of appeal and undertaking on the clerk by mail on the last day, is not sufficient.
      The action was brought by John H. Tan Clief, as supervisor, against John T. Mersereau and others.
      The plaintiff obtained a report in his favor, filed it in the clerk’s office, and gave due notice thereof; and entered up judgment thereupon, and served a notice of entry.
      The defendants filed and served exceptions to the report in due time, and on the last day served on plaintiff’s attorney a notice of appeal and copy undertaking. They also, on the same day, mailed a-notice of appeal to the clerk, together with the undertaking. The notice of appeal and undertaking did not reach the reach the clerk untikthree days after .time, and were then filed by him. The plaintiff’s attorney immediately- returned the papers served upon him, with a notice that they were irregular and void, because no notice of appeal and undertaking were served upon and filed with the clerk in time.
      ■ The defendant’s attorney, upon affidavit setting forth proceedings, applied for and obtained an order that “ the plaintiff show cause why the exceptions of the» defendants to the report of the referee in this action should not be amended so as to contain a formal notice of appeal, and that the same be refiled in the clerk’s office of Richmond county, as of the: date when said exceptions were originally filed, or for such other order, relief, or amendment to perfect the defendants appeal as- to the court shall •seem meet.”
      The motion came on for argument before Mr. Justice Oilbebt at special term, who made an order denying the motion, with costs.
      From this order the defendants appealed to the general term.
      
        Charles Whelp, for the defendants.
      
        A. De Croot, for thé plaintiff.
      On behalf of appellants, the following points were made and cases cited:
      I. That the practice of the plaintiff was technical, and in'such case the court would be magnanimous to find means to grant relief (Jellinghaus v. New York Ins. Co., 5 Bosw., 678).
      II. That if, under Morris v. Morange (26 How. Pr., 247), the court considered mailing on' the last day insufficient, then relief might be granted-, under decisions in first district, holding that exceptions filed aúd served are a sufficient notice of appeal, and-, if .informal, may be made formal under section 327 of the Code (Jackson v. Fassett, 33 Barb., 645; 12 Abb. Pr., 281; 21 How. Pr., 279; Sherman v. Wells, 14 Id., 525; Tellinghaus v. New York Ins. Co., supra; Fry v. Bennett, 16 How. Pr., 385; Mills v. Shessby, 11 Id., 129; Irwin v. Muir, 13 Id., 410; Wood v. Kelly, 2 Hilt., 335).
      On behalf of respondents, the following points were made and cases cited :
      I. That the order must be affirmed, because, if reversed, it would be in effect allowing an appeal to be taken after time to appeal has expired., No undertaking was filed in time The Code (section 337) requires it “ to be given to render an appeal effectual for any purpose,” and it must be filed (Code, § 343).
      II. That the defendants seek to have the court hold that service of exceptions is sufficient. It has been expressly held “That súoji is not the law in this (second) district. It would be a repeal of the provisions of the Code on the subject” (Case not reported, but cited in Voorhies' Code, 8 ed., 640, note b).
      III. The appeal is not made until notice is served on clerk and adverse party. If not served on clerk in time, it is a nullity (Westcott v. Platt, 1 Code R., 100; Morris v. Morange, 17 Abb. Pr., 86; 26 How. Pr., 247). (1.) Service by mail on clerk on last day is not sufficient (Westcott v. Platt, and Morris v. Morange, supra). (2.) The omission to serve on clerk in time cannot be rectified (Morris v. Morange, supra; 26 How. Pr., 247; 5 Id., 114; 7 Id., 108; 3 Code R., 163).
      IV. The court cannof extend time to appeal (time presented, Code, §§ 332-405), or alter appeal after time (2 Code R., 71; 1 Id. N. S., 67; Id., 139; Id., 73; 9 Paige, 572; 2 Code R., 96; 7 How. Pr., 108; 16 Id. 385; 24 Id., 193; 26 Id., 247; 7 Abb. Pr., 352; 27 How. Pr., 133; S. C., 27 N. Y., 638; 14 How. Pr., 430).
      V. The court cannot allow appeal after time by any indirect method 11 N. Y. [1 Kern.], 274).
      No opinion was given; but the following order was made:
      
        [Title of the cause, &c.]
      
      The defendants having appealed to this court, from an order made by yhe Hon. J. W. Gilbert, Justice, at special term, January 24, 1870, denying a motion to amend exceptions by inserting therein a former notice of appeal and for other relief; and argument having been had thereupon, Mr. S. E, Church appearing for the defendants (appellants), and Mr. S. F. Rawson appearing for the plaintiff (respondent). Now, it is ordered that said order so appealed from be, and the same is, hereby affirmed with ten dollars costs.
      The defendants, claiming that i their appeal was regular, noticed the appeal from the judgment for argument at the same time as the appeal from the order. On motion, the case on appeal from the judgment was stricken from the calendar, the court holding that “the order of Justice Gilbert was a decision that no appeal had been taken, and, until reversed^ the noticing for argument of. the appeal from the judgment was irregular.”
    
   By the Court.—Freedman, J.

This is an appeal from an order made at special term denying the motion of the defendants to compel the plaintiff to make his complaint more definite and certain, to state two causes of action, alleged to he contained in one count, separately, and to number the same, and to strike out irrelevant and redundant matter therefrom. The’denial of the motion was a matter resting in the discretion of the judge below, and relates to a mere matter of practice or form of proceeding; it does not involve the meiits of the action, or some part thereof, and the order, therefore, is not appealable (Whitney v. Watterman, 4 How. Pr., 313; St. John v. West, 4 Id., 329; Bedell v. Stickles, 4 Id., 433; Salters v. Genin, 10 Abb. Pr., 478; 19 How. Pr., 233). Nor does the order, as made, affect a substantial right; for a party cannot be said to have a substantial right to what a court has a discretion to grant or withhold. The legislature must have intended, by a substantial right, a fixed, determined right, independent of the discretion of the court, and of some value. Such a right must exist, and be injuriously affected by an order, to bring a case within the third subdivision of § 349 of the Code (Tallman v. Hinman, 10 How Pr., 90).

The appeal should be dismissed with costs.

Mokell and Spebceb, JJ., concurred.

Order accordingly.  