Tallman v. Hinman
10 How. Pr. 89
N.Y. Sup. Ct.
1854
Check Treatment
By the court—T. R. Strong, Justice.

It is objected preliminarily, that the order at special term was not appealable. An appeal could not be taken from it unless the order is within § 349 of the Code. There is no other provision which author*90izes the appeal. That section allows an appeal from an order in the cases specified in its several subdivisions, but it is clear that none of them embrace this order, unless it is the third. The third subdivision is, “ when it involves the merits of the action, or some part thereof, or affects a substantial right.” In St. John agt. West, (4 How. Pr. R. 829,) the word “ merits,” as here used, is held to mean £< the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court;” and this, I think, the correct interpretation. It cannot be contended that this order involves the merits of the action, thus understanding the term merits; it relates merely to a matter of practice—the form of a proceeding. The summons is not void; it is at most merely voidable for an omission to comply with the practice, which, however proper, is entirely dependent upon the discretion of the court. It is not a statutory requisite of a summons that it shall state the name of the court in which the action is brought; § 128 of the Code, which prescribes the requisites of a summons, is silent on the subject. The counsel for the defendants supposes that the 57th section of the judiciary act (Laws of 1847, p. 335) in relation to the return of process, is applicable to this case, but I am satisfied this is a mistake. Does the order then affect a substantial right of the defendants 1 If the view above expressed, that the order relates merely to the practice, which is entirely governed by the discretion of the court, is correct, it is difficult to see how any substantial right of the defendants can be affected by it. A party cannot be said to have a right to what a court has a discretion to grant or withhold. The legislature must have intended by a substantial right, a fixed determinate 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 subdivision above given.

The preliminary objection must therefore be sustained, and the appeal dismissed.