Goldberg v. . Utley
Cases that cite this one
26 later published cases cite this decision. The 25 that cite it most often are listed here.
- Powers v. Sherin (Appellate Division of the Supreme Court of New York 1903)
- Mordkowitz v. Mordkowitz (New York Supreme Court 1958)
- Crawford Music Corp. v. American Record Corp. (New York Supreme Court 1939)
- O'Hara v. Derschug (Appellate Division of the Supreme Court of New York 1931)
- Ernest v. Schmidt (Wis. 1929)
- Lyon v. Pennsylvania Railroad (New York Supreme Court 1922)
- Streeter v. Cloud (Appellate Division of the Supreme Court of New York 1916)
- Southern Surety Co. v. Waits (Okla. 1915)
- Witherbee v. Bowles (Appellate Division of the Supreme Court of New York 1911)
- Obermayer v. Geering (New York Supreme Court 1911)
- Todaro v. Somerville Realty Co. (Appellate Division of the Supreme Court of New York 1910)
- Vock v. Auterbourn (New York Supreme Court 1910)
- Silver & Co. v. Waterman (Appellate Division of the Supreme Court of New York 1908)
- Stern v. Marcuse (Appellate Division of the Supreme Court of New York 1907)
- O'Connor v. . Virginia Passenger Power Co. (N.Y. 1906)
- Benson v. Battey (Kan. 1904)
- Crowell v. Truesdell (Appellate Division of the Supreme Court of New York 1902)
- Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Beck (Ind. 1899)
- Zrskowski v. Mach (Superior Court of Buffalo 1895)
- Market & Fulton National Bank v. Jones (New York Supreme Court, Cayuga County 1894)
- Lamming v. Galusha (New York Supreme Court 1892)
- Lehnen v. Purvis (New York Supreme Court 1890)
- Hubbell v. Buhler (N.Y. 1889)
- Stanton v. Missouri Pacific Railway Co. (New York Supreme Court 1888)
- Gunn v. Fellows (New York Supreme Court 1886)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
I think this order is not appealable to this court. First. We have no evidence that the motion was not decided upon the merits, and if so, it was discretionary with the court below. The ground of the decision is not stated in the order, and the memorandum is not evidence. Second. But if the memorandum is regarded the motion involved only the question whether there was a waiver, which like laches is never appealable, but is regarded as discretionary, and the construction of the order of the judge is of the same *Page 429 character. If the question was before us it seems to me clear that the right to make this motion was reserved. Third. But the principal ground for holding it not appealable is that it does not involve a substantial right. It is true the Code requires causes of action to be separately stated and numbered, but this is a mere question of practice over which the court below has control, and unless it appears that the party will or may be deprived of some legal right by the action of the court, it must be regarded as formal and not substantial. The Code also requires pleadings to be folioed, but an order denying a motion to have it done would not be appealable here. If the complaint contains several causes of action improperly united contrary to the Code as is claimed, the vice may be reached by a demurrer, and the failure of the plaintiff to state them separately and number them would not be an answer to it, nor would a failure to move to correct the complaint in this respect defeat the effect of a demurrer. The plaintiff cannot deprive the defendant of the benefit of a demurrer upon this ground by omitting to number his causes of action. A substantial remedy cannot be prevented by a neglect to observe the rules of practice, nor in a case like this would the defendant be regarded as waiving such remedy by not making this motion.
The case of Bass v. Comstock (
The appeal must be dismissed.
All concur.
Appeal dismissed. *Page 430
Case-law data current through December 31, 2025. Source: CourtListener bulk data.