53 How. Pr. 422 | NY | 1877
It is conceded that the action is referable under the statute, and whether it should be referred or not was discretionary with the court below, and the order is not therefore appealable to this court. The point insisted upon is that the order was not appealable to the General Term. Section 349 of the Code provides (among other things) that an order is appealable from the Special to the General Term, "when it involves the merits of the action, or some part thereof, or affects a substantial right." The question is whether this order affects a substantial right. It is claimed that a substantial right, within the meaning of the Code, is *103
an absolute legal right, and that a matter which is discretionary is not a substantial right, and hence not appealable to the General Term. There are judicial expressions made during the earlier period of the Code which favor this view, but it is an erroneous construction, and it has been settled that the General Term may review orders that affect substantial rights, although discretionary. DENIO, J., in
The appeal to this court must therefore be dismissed.
All concur, except RAPALLO, J., absent.
Appeal dismissed.