R. 184.) The motion in this case must therefore be granted, and the defendant must have judgment for the costs of the appeal and ten dollars costs of motion to dismiss the appeal.

And as a question was raised on the motion as to what costs the respondent was entitled to, I may as well settle that question now and save another motion in this cause. The costs are governed by the fee bill as contained in the Revised Statutes and are to be taxed by an officer authorized to tax costs in such cases.

By section 8 of the code, none of the sections of title 10 of the code, "entitled of the costs in civil actions," are applicable to civil actions commenced in the courts of this state before the 1st day of July 1848, unless otherwise provided therein.

Now the only provision in relation to applying any part of title 10 to suits pending on the 1st day of July 1848, is found in the act entitled "an act to amend an act entitled an act to facilitate the determination of existing suits in the courts of this state," passed April 11, 1849, and which applies section 315 alone, and which is the section in relation to costs on motion, &c. It follows, therefore that the code, so far as costs are concerned, except as to costs upon motion, has no application to any suit pending in the courts of this state on the 1st day of July, 1848. And all such suits are left to their final determination, into whatever court they may be carried, to the effect of the former fee bill. The costs of the appeal in this case are to be taxed under the fee bill regulating costs in the Court for the Correction of Errors, as provided by the rules and practice of that court and the statutes in relation thereto, (2 W. R. 239; Graham's Pr. 977, 978, 2 ed.; 2 R. S. 622.)

SUPREME COURT.

ELIZABETH M. BEDELL vs. JOHN W. STICKLES.

An order of a single justice refusing to strike out matter as irrelevant and redundant, in a pleading is not an appealable order to the general term, (See Whitney agt. Whitney ante, page 315.)

Appealable orders, as settled in the second district are, 1st. Those mentioned in § 349. and which relate only to appeals from orders and judgments in "civil actions."

2d. Special proceedings of an equitable nature, such as under the former practice were appealable from a vice-chancellor to the chancellor.

3d. In special proceedings, not of an equitable nature, where an appeal is expressly given by statute, or existed according to the former practice of the Supreme Court.

Special proceedings are not regulated by § 349, but depend upon the pre-existing laws and practice.

It seems, that the rule in relation to striking out irrelevant and redundant matter, should be in analogy to that of the old Supreme Court, in relation to frivolous demurrers. Where there is some question, or ground for argument about it, the application should be refused. (The views of Mr. Justice HARRIS in the cases of White v. Kidd, and Hynds v. Griswold, ante, pages 68 and 69, upon this subject, concurred in.)

Dutchess General Term, Poughkeepsie, July, 1850.-Justices MORSE, BARCULO and BROWN. In this case Justice WRIGHT made an order on the application of the defendant, refusing to strike out certain matters contained in the complaint, which defendant's counsel moved to strike out as redundant and irrelevant. The defendant, thereupon, appeals from that decision to the general term, and contends that this court should now strike out those facts which the justice refused to strike out. E. P. COWLES, for plaintiff.

Mr. REYNOLDS, for defendant.

By the Court, BARCULO, Justice.-The question as to what cases are appealable from the decision of a single justice, was presented several times at the last general term of this court held at Brooklyn. We therefore took the matter into consideration, with a view of settling the practice in this district; and now take this occasion to state our conclusions.

In the first place, we are of opinion that section 349 of the code relates only to appeals from "orders and judgments in civil actions." This is apparent as well from the language of the section as the language of section 323, which is the first section of the title, and declares that "the only mode of reviewing a judgment or order, in a civil action, shall be that prescribed by this title;" and section 8, which assigns the second part of the code "to civil actions commenced in the courts of this state," &c.

It follows from this view, that appeals in special proceedings are not regulated by section 349, but depend upon the pre-existing laws and practice.

Consequently, where the proceeding is of an equitable nature, such as under the former practice, would have come within the cognizance of a vice-chancellor, and was subject to appeal to the chancellor, in such cases an appeal now lies from the decision of a single justice to this court at a general term. This, of course, includes the applications in regard to the removal of trustees, or the disposition of trust estates which have been before us.

But where the special proceeding is of such a nature as not to fall within the jurisdiction of the former Court of Chancery, then, as a general rule, no appeal lies to the general term, from the decision of the VOL. IV.

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special term. The exceptions are where such appeal may be expressly given by statute or existed according to the former practice of the Supreme Court. This rule is analogous to the rule formerly prevailing in the Court of Chancery and Supreme Court, the powers of which are transferred to this court by the constitution and Judiciary Act of 1847.

Applying these principles to the case before us, it is obvious that the appeal cannot be sustained, because it is from an order made in an action, and therefore, is regulated by the code, but does not fall within any of the subdivisions of section 349. The defendant's counsel contends that it "involves the merits of the action, or some part thereof." But this cannot be so; for the very ground of the motion is, that the matter sought to be stricken out is redundant and immaterial. Now, if the matter is redundant and immaterial, it cannot clearly involve the merits; and if it does not involve the merits it cannot get to us by appeal. If, however, it should be conceded that the matter does involve the merits, then the decision of Justice WRIGHT in refusing to strike out the merits, was clearly right, and must be affirmed, if we should entertain the appeal.

In regard to the question of striking out irrelevant and redundant matters, I will add that I have had several recent applications before me of this nature, and have in every case denied the motion. This was done upon the ground that there was some question as to the matters being wholly irrelevant. I think the true rule to be adopted, is one in analogy to the rule of the former Supreme Court, in regard to frivolous demurrers. If the case was such as to require any argument to show that it was frivolous, the court would not dismiss the case, but retain it for argument in its order on the calendar. So under the code, if the matter on being stated is not clearly irrelevant, it should not be stricken out on motion, but the party should be left to his demurrer. Nor should motions of this character be encouraged by striking out every superfluous word unless it partakes of the scandalous, or otherwise manifestly aggrieves the opposite party. I think that the true view of this part of the code has been taken by Justice HARRIS in White v. Kidd, and Hynds v. Griswold, (4 How. 68 and 69.)

SUPREME COURT.

GRAHAM agt. MILLIMAN.

Where a case has been tried without a jury, or by a referee, a review upon the evidence appearing upon the trial, either of the questions of fact or of law, can be heard before a special term; such terms having power to grant or refuse a new trial.

Such review is brought before the court by a case made and settled according to the rules of the court.

A bill of exceptions taken on the trial, or in pursuance of § 268 and 272 of the code, is parcel of the record, and can be heard only on appeal at a general term.

A case reserved under § 264, 265, can be heard only at special term, either upon the judges' notes or upon a case as he shall direct.

A rehearing is a proceeding different from a bill of exceptions, case reserved, or motion for a review, and is to be understood in the sense in which the term was used prior to the code.

What costs are recoverable on the case reserved, motion for review, or rehearing? Quære. (This case accords with the views taken in Leggett agt. Mott, ante, page 325; and Lusk agt. Lusk, ante, page 418.)

At chambers, July 22, 1850.

WILLARD, Justice. This is an application for an order to stay proceedings, on a judgment upon the report of referees, with a view to move at the next special term in Washington county, for a rehearing or new trial, in pursuance of section 272 of the code. It involves the question, whether the court at a special term, can grant a rehearing, or a new trial on a case, after a trial and judgment by referees?

The code provides four ways by which, in actions pending in the Supreme Court, the decision of the tribunal by which they are first tried may be examined. First, by appeal. This enables the court, at a general term, by means of a bill of exceptions, to correct the errors in matters of law, committed by a single judge, either at the circuit, or on a trial without a jury, or by a referee to whom the whole issue has been referred. (Code, § 348, 268, 272.) This appeal is a substitute for a writ of error, in actions at law under the former practice, and takes the place of the former appeals in the Court of Chancery, from first decrees. The rules which regulate the practice are 18, 19, 27, 32, and perhaps some others. This remedy cannot be pursued until after judgment, and reaches substantial defects of the record. Secondly, by case reserved for argument, or further consideration, under sections 264, 265. This applies to causes tried by jury, and must be moved for before judgment. The judge who reserves the cause, if he be the one who hears the argument, by necessary implication has the power to set aside the verdict and grant a new trial.

The last paragraph of rule 31 was designed to regulate the practice in this respect; and although the code and the rule are both silent on the subject, it is believed that a case, thus reserved, may be heard before any other judge holding a special term, with the like power of granting cr refusing a new trial. If made at the same term of the trial, before the judge by whom the cause was tried, the argument will generally be made upon the judge's notes. But should there be an appeal to the general term, from the judge's order in granting or refusing a new trial, a case must be prepared according to the rule. Thirdly, by a motion for a review upon the evidence appearing on trial, either of the questions of fact or of law, on a trial by the court, where a trial by jury has been waived, and on trial by referees. (Code, § 268, 272.) The 15th and 24th rules, as originally drawn, were designed to regulate this practice. This motion is not made until after judgment. And fourthly, by a rehearing granted by the court, in which the judgment is entered, under the last clause of § 272. This applies only to cases in which the whole issue has been determined, on a trial by referees. The rules of the Supreme Court make no specific provision for this last class of cases, but they are left to be regulated by the code, and the general analogies of the practice. The 92d rule adopting the customary practice, in cases not provided for, is applicable.

The power of setting aside a verdict obtained irregularly, or by surprise, and of granting a new trial, on the ground of newly discovered evidence, belongs also to the special term, but these remedies are not material to be noticed in this connection.

The question whether a motion for a "review upon the evidence appearing on the trial, either of the questions of law or of fact," can be heard at a special term, was discussed at the convention of the judges who revised the rules in August, 1849. Some of the judges were of opinion that this is a different proceeding from a bill of exceptions, provided for in the first clause of the same section, 268, and was to be heard at a special term, whether the cause sought to be reviewed had been tried before the court, without a jury, or by referees. This was my own opinion. The 24th rule, as reported, did not prescribe before what court the question should be argued, it being supposed by me that the code contemplated that it should be had at the special term; a majority thought otherwise; and the clause requiring such case to be heard only on appeal at a general term, was adopted and inserted in the rule. If this clause be in conflict with the code, as I think it is, it must of course give way.

Some of these questions have recently been decided in the Superior