Will v. Barnwell — 115 N.Y.S. 1149

Majority

p. 1149

WILL, Respondent, v. BARNWELL, Appellant.

(Supreme Court, Appellate Division, Fourth Department.

February 4, 1909.)

Headnote

Action by John Will against Charles P. Barnwell.

Interlocutory judgment ( 60 Misc. Rep. 458 , 112 N. Y. Supp. 462 ) reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to plead over upon payment of the costs of the demurrer and

p. 1150

of this appeal. Held, that the complaint fails to state any reason why the defendant failed to comply with the provisions of the former judgment, or to allege that it was because of the refusal of defendant’s wife to join in .the conveyance, or that the right to the relief sought by this action could not properly have been determined in the former action.

SPRING and WILLIAMS, JJ., dissent.