Lewis v. Clarke

163 A.D. 971, 148 N.Y.S. 1126

Opinion

Order and interlocutory judgment affirmed, with costs and disbursements, but with leave to defendants within twenty 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. “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 PI. & Pr. 321; People v. Mayor, 28 Barb. 240, 251; Holmes v. Seaboard Portland Cement Co., 63 Misc. Rep. 82.) Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.