Clarkin v. City of New York

173 A.D. 904, 157 N.Y.S. 1120

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1916
• Status: Published

Opinion

— The demurrer is sustained as to the second defense and the seventh partial defense • on the authority of McGrade v. City of New Yok (126 ); Moore v. Board of Education (121 id. 863; affd., 195 N. Y. 614) and Pitt v. Board of Education (316 id. 304); and the demurrer to the fifth defense is sustained as within Allen v. City of New York (160 App. Div. 534). The matter should not be plead affirmatively, but would be a mere matter of denial if the complaint had proper" allegations to bring it within Alien 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. (104 N. Y. 186), and the interlocutory judgment 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., Thomas, Stapleton, Mills and Putnam, JJ., concurred. Order to be settled before Thomas, J.