Clarkin v. City of New York

The demurrer is sustained as to the second defense and the seventh partial defense on the authority of McGrade v. City of New York, 126 App. Div. 362 , 110 N. Y. Supp. 517 , Moore v. Board of Education, 121 App. Div. 862 , 106 N. Y. Supp. 983 , affirmed 195 N. Y. 614 , 89 N. E. 1105 , and Pitt v. Board of Education ( 216 N. Y. 304 , 110 N. E. 612 ); and the demurrer to the fifth defense is sustained as, within Allen v. City of New York, 160 App. Div. 534 , 145 N. Y. Supp. 1022 , the matter should not be pleaded affirmatively, but would be a mere matter of denial, if the complaint had proper allegations to bring it within Allen v. City of New York, which points out the plaintiff’s remedy. The demurrer to the eighth partial defense is overruled on the authority of Brehm v. Mayor, etc., of N. Y., 104 N. Y. 186 , 10 N. E. 158 , and the interlocutory judgment ( 91 Misc. Rep. 98 , 154 N. Y. Supp. 1019 ), so far as appealed from, is reversed and the demurrer sustained, with costs, with the usual leave to plead over on payment of costs. Jenks, P. J., and Thomas, Stapleton, Mills, and Putnam, JJ., concur. Settle order before Thomas, J.