Majority
p. 905The Warburton Hall Association, Resp’t, v. Patrick J. Flannery, Impl’d, App’lt. (Supreme Court, General Term, Second Department, Filed July 2, 1891.)
Headnote
1. Pleading—Complaint.The amended complaint, served on defendant after he had been brought in by interpleader, alleged the performance of services for the city by a certain firm, and the assignment of the claim therefor to plaintiff; its nonpayment; that defendant made claim to said fund, which claim was worthless, and that he was a defendant by interpleader, and demanded judgment against him for the amount of said fund and costs. On demurrer, jHeld, that the complaint stated a cause of action.
:2. Same—Demurrer.
It is not a ground for demurrer that the judgment demanded is inappropriate.
Appeal from interlocutory judgment overruling a demurrer "to the complaint.
The complaint was as follows:
First. That the plaintiff and defendant, The Board of Education in the City of Yonkers, are corporations duly organized and ■existing under the laws of the State of New York, and so organized and existing at the times herein mentioned.
Second. That plaintiff and defendant, said Board of Education, mow are and were, at the time of the commencement of this action, residents of the city of Yonkers, having their offices in, andtrans•acting their business in, said city.
Third. That heretofore and at all the times mentioned, prior to "the commencement of this action, Thomas Stratford and Ernest .A. Lynde were civil engineers and surveyors, and formed a copartnership for business under the firm name of Stratford & Lynde.
Fourth. That during said copartnership, and in the month of
p. 906
J une, 1890, said firm was employed by defendant, said Board of Education, to do certain work, consisting of laying out the grounds, drawing plans and superintending work in and about the new high school of defendant on South Broadway, Yonkers, and said work of said firm was reasonably worth the sum of one hundred and thirty-two and 50-100 dollars ($132.50), which said board promised and agreed to pay, and which became due and payable about Sept. 1, 1890.
Fifth. That thereafter and before the commencement of this action, said claim of Stratford & Lynde was duly assigned for value to the plaintiff, of all of which said Board of Education had notice before the commencement of this action, but declined to pay in whole or part
Sixth. That no part of said claim has been paid, and that Patrick J., defendant, makes claim to said.fund, but which claim is worthless, and said Flannery is defendant by interpleader.
Wherefore, by reason of the premises, plaintiff asks judgment against the defendant, Patrick J. Flannery, for the sum of one hundred and thirty-two and 50-100 dollars ($132.50), with interest from September 1, 1890, besides costs.
F. X. Donoghue, for app’lt; John F. Brennan, for resp’t.
—Although unartificial in form the complaint contained a cause of action.
It showed the'existence of a cause of action, its assignment to plaintiff, that defendant claimed to hold it and had been made defendant in interpleader.
The demand for judgment was inappropriate, but that is not ground for demurrer.
The court properly overurred the demurrer, and. upon expiration of the time given to answer over, entered the proper judgment giving to plaintiff the fund in suit with the taxed costs.
The judgment appealed from is affirmed, with costs.
Barnard, P. J., and Dykman, J., concur.