Nathaniel L. McCready, Respondent, v. Edward L. Larkin, Appellant, Impleaded with John A. Larkin and Thomas A. Larkin, Defendants

Nathaniel L. McCready, Respondent, v. Edward L. Larkin, Appellant, Impleaded with John A. Larkin and Thomas A. Larkin, Defendants. First Department, July 10, 1916. See head note in McCready v. Larkin (ante, p. 847). Appeal by the defendant, Edward L. Larkin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of July, 1915, sustaining a demurrer to certain defenses contained in the second amended answer of the appellant. John T. Pooling, for the appellant. Robert Kelly Prentice, for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: The answer of the defendant is identical with that of his codefendant, John A. Larkin, save that it contains no counterclaim, this defendant having assigned his interest in the $2,500 demanded under the counterclaim to John A. Larkin. For the reason assigned in the opinion on the appeal of John A. Larkin (173 App. Div. 847), the judgment appealed from will be modified by decreeing that the fourth and eighth defenses contained in the second amended answer of the defendant Edward L. Larkin are sufficient in law upon the face thereof and overruling the demurrers thereto, and in other respects affirmed, with costs to appellant. The conclusions of law in the decision will be modified accordingly. Clarke, P. J., McLaughlin, Scott and Davis, JJ., concurred. Judgment modified as indicated in opinion and as modified affirmed, with costs to appellant. Order to be settled on notice.