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Pettis v. Schwartz

137 A.D. 242 Court First Department, Decision date 1910-03-11 English

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p. 242
Ellis Pettis, Appellant, v. Adolph Schwartz, Respondent.
First Department,
March 11, 1910.

Headnote

See head note in Adams v. Schwartz (ante, p. 230).
Appeal by the plaintiff, Ellis Pettis, from an interlocutory judg ment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the counterclaim contained in the answer.
Frank Walling {Harvey J. Cohen with him on the brief], for the appellant.
A. Joseph Ceist {Henry Swartz with him on the brief], for the respondent.

The questions presented by this appeal are the same as those presented in the case of Adams v. Schwartz ( 137 App. Div. 230 ), argued and decided herewith. The plaintiff in- this action was also a bill-poster, and claims to have been arrested and maliciously prosecuted at the same time and place and under like circumstances, and the defendant likewise counterclaimed against him for trespass..

On the authority of the opinion in the other action the interlocutory judgment should be reversed, with costs, and demurrer sustained, with costs, but with leave to defendant to serve an amended answer, omitting the counterclaim, on payment of the costs -of the appeal and of the demurrer.

Present — Ingraham, P. J., Laughlin, Claree, Scott and Miller, JJ.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs. ■

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