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Barclay v. Barrie

120 N.Y.S. 1113 Court N.Y. App. Div. Decision date 1910-01-14 English

Decision Majority — PER CURIAM. · Concurring — LAUGHLIN, J.,

Contents
p. 1113
BARCLAY v. BARRIE.
(Supreme Court,. Appellate Division, First Department.
January 14, 1910.)

Headnote

Appeal from Special Term, New York County. Action by Reginald G. Barclay against Alexander Barrie. From an adverse judgment, defendant appeals. Affirmed.
See, also, 64 Mise. Rep. 403, 119 N. Y. Supp. 463 .
Edward B. Hill, for appellant.
Chester A. Jayne, for respondent.

The order should be affirmed, with $10 costs and disbursements.

concurs, basing his vote solely on the ground that a party, in demurring or moving for judgment on the pleadings, under section 547 of the Code of Civil Procedure, should be held to have made an election of remedies, and may not, either pending proceedings on one or after exhausting his remedy thereon,. be permitted to pursue the other with respect to the same point, and that the affidavit was properly received to show that the same question had been presented by the moving party by demurrer.