Lewis v. Clarke — 148 N.Y.S. 1126

Majority

p. 1126

LEWIS et al. v. CLARKE et al.

(Supreme Court, Appellate Division, Second Department.

June 26, 1914.)

Headnote

Action by Edward C. Lewis and John H. Kitchen, copartners, etc., against Henry S. Clarke and others.

Order and interlocutory PER judgment affirmed, with costs and disbursements, but with leave to defendants within 20 days after entry of the order herein to withdraw such demurrer and answer the complaint, upon payment of the costs awarded at the Special Term and upon this appeal. While the complaint may not state facts sufficient to constitute a cause of action against the former mayor, it does as against the common council.

p. 1127

"Where two or more defendants unite in demurring to a complaint, * * * it must be overruled if the complaint states a good cause of action against any one of the parties jointly demurring." 6 Ency. of Plead. & Prac. p. 321; People v. Mayor, 28 Barb. 240 , 251; Holmes v. Seaboard Portland Cement Co., 63 Misc. Rep. 82 , 116 N. Y. Supp. 524 .

Cases cited

People v. Mayor of New York 28 Barb. 240 N.Y. Sup. Ct. 1858-10-28 at 251 p. 1127
Holmes v. Seaboard Portland Cement Co. 63 Misc. Rep. 82 N.Y. Sup. Ct. 1909-04-28 at 116 p. 1127