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Blum v. Whitney

111 A.D. 922 Court First Department, English

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p. 922
First Department,
February, 1906.
Edwin Blum, on Behalf of Himself and All Other Stockholders of the Distilling Company of America, Similarly Situated, Appellant, v. Harry Payne Whitney, as Executor, etc., of William C. Whitney, Deceased, and Others, Respondents.

Headnote

Appeal by the plaintiff from an interlocutory judgment, entered in the-office of the clerk of the county of New York,on the 18tb day of September, 1905, sustaining demurrers to the third amended complaint. ■ •

We are all of opinion that the case of Hutchinson v. Simpson ( 92 App. Div. 382 ) is.decisive of this appeal; but, were it not for the controlling authority thereof Justices Laughlin and Clarke would dissent -on the grounds stated in the dissenting opinion, therein. It follows that the judgment should be affirmed, with separate bills of costs to- the respondents appearing separately, with leave to plaintiff to serve an amended complaint within twenty days from the service of the order to b"e entered hereon, on payment of the costs in this .court and in the court below. Present —Patterson, Ingraham, Laughlin" and Clarke, JJ. Judgment affirmed, with separate bills of costs to respondents appearing separately, with leave to plaintiff to amend on payment of costs in this court and in the court below. Order filed.

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