O'Brien v. Fitzgerald — 150 N.Y. 572

Majority

p. 572

Miles M. O’Brien et al., Receivers of The Madison Square Bank, Appellants, v. Lawrence J. Fitzgerald, Impleaded, etc., Respondent.

(Argued October 5, 1896;

decided October 27, 1896.)

Headnote

O’Brien v. Fitzgerald, 6 App. Div. 509 , affirmed.

Appeal, upon questions certified for review, from judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1896, which affirmed an interlocutory judgment in favor of defendant entered upon a decision of the court on trial at Special Term, sustaining a demurrer to the complaint.

Fouis Marshall for appellants.

Franklin Pierce for respondent.

Judgment affirmed, with costs, on the opinion below, and the questions answered as follows:

1st. Whether the amended complaint in this action sets forth a cause of action in equity. Answer, no.

2d. Whether there has been an improper joinder of causes of action in the amended complaint herein. Answer, yes.

Concur — Gray, O’Brien, Bartlett and Vann, JJ.

Dissent — Andrews, Ch. J., Haight and Martin, JJ.