Gertrude D. Hawes, Respondent, v. Eliza C. Dunlop and Oliver J. Wells, Defendants, Impleaded with Henry H. Snedeker, Appellant

Gertrude D. Hawes, Respondent, v. Eliza C. Dunlop and Oliver J. Wells, Defendants, Impleaded with Henry H. Snedeker, Appellant. (No. 2.) First Department, February 18, 1910. Demurrer to answer — insufficient complaint. Where the Appellate Division has sustained a demurrer to a complaint upon the ground that it does not state a .cause" of action,, a judgment sustaining a demurrer to the answer will be reversed. Appeal by the defendant, Henry H. Snedeker, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of Hovember, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to a further defense set up in the answer of the said defendant: Henry H. Snedeker, appellant, in person. Gilbert Hay Hawes of counsel [Irving Goldberg with him on the brief], for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: This is an appeal by the defendant Snedeker from an interlocutory judgment of the Special Term sustaining a demurrer to the further defense set up in his answer. In Hawes v. Dunlop, No. 1 (136 App. Div. 629), upon .the appeal by Mrs. Dunlop from an interlocutory judgment overruling a demurrer to the same complaint, we have held that it did not state facts sufficient to constitute a cause of action. That being so this judgment sustaining a demurrer to the answer should be reversed, with costs, and the demurrer overruled, with costs, with leave to the respondent upon payment of costs in this court and in ■the court below to withdraw said demurrer. • Ingraham, P. J., Labghlin, Scott and Milleb, JJ., concurred. Judgment reversed, with costs, and demurrer overruled, with Costs, with leave to respondent to withdraw demurrer on payment of costs.