Majority
p. 425The People, Resp’ts, v. The N. Y. City Underground Railway Company, Impleaded, App’lt. (Supreme Court, General Term, First Department, Filed June 26, 1891.)
Headnote
Pleading—Complaint—Demurrer to—Proper remedy.When a complaint does not state a cause of action and fails to demand any judgment against one of several defendants, the proper remedy of . such defendant is to interpose a demurrer to the complaint and not a motion to strike out.
Appeal from order denying motion to strike out the complaint herein as against the appellant and to dismiss the case as to said appellant upon the ground that the amended complaint fails to
p. 426
demand any judgment against the company, and further, because the company has no interest in this case.
G. Hoadley, for app’lt; D. J. Dean, for resp’ts.
—It seems to us that the answer to this motion is very simple. If a judgment is entered which is' not authorized by law, having reference to the prayer for relief in this action, the defendant appellant has its motion to set it aside, and is amply protected.
If it is sought to sustain this motion upon the ground that no cause of action is alleged against the defendant, appellant, then the remedy of such defendant is very simple, viz.: to interpose a demurrer to the complaint and have the issue of law tried in the usual way.
The order appealed from should be affirmed, with costs.
. Barrett and Patterson, JJ., concur.