Majority
p. 50(137 App. Div. 242.) PETTIS v. SCHWARTZ. (Supreme Court, Appellate Division, First Department. March 11, 1910.) Argued before INGRAHAM, P. J., and DAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
Headnote
Appeal from Special Term, New York County.Action by Ellis Pettis against Adolph Schwartz. From an interlocutory judgment overruling plaintiff’s demurrer to defendant’s counterclaim, he appeals.
Reversed, with leave to file an amended answer omitting the counterclaim, on payment of costs.
Frank Walling (Harvey J. Cohen, on the brief), for appellant.
A. Joseph Geist (Henry Swartz, on the brief), for respondent.
The questions presented by this appeal are the same as those presented in the case of Adams against this defendant, argued and decided herewith. 122 N. Y. Supp. 41 . The plaintiff in this action was also a bill poster, and claims to have been arrested and maliciously prosecuted at thé 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.