107 N.Y.S. 840 | N.Y. App. Div. | 1907
This is an action against directors of a membership corporation upon an alleged debt of the corporation contracted while they were directors and payable within one year or less from the date it was contracted. (Mem. Corp. Law [Laws of 1895 chap. 559], § 11, as amd. by Laws of 1899, chap. 29.2‘.) Issue was joined, whereupon the plaintiff demurred to the separate defense as insufficient in law upon the face thereof. Ah interlocutory judgment overruling the demurrer was entered. At the trial the defendant moved for judgment on the pleadings upon the ground, among others, that neither the opinion handed down upon the decision of the demurrer (45 Misc. Rep. 215), nór the decision, nor the interlocutory judgment gave the plaintiff leave to withdraw his demurrer, and that it was still in the records.' The court granted the motion and the plaintiff appeals from the judgment thereupon entered, bringing up for review the interlocutory judgment.
■ I tLmk that the court was right in its' disposition of the case. (National Contracting Co. v. Hudson River W.P. Go., 110 App. Div. 133.) But the interlocutory judgment is now under review. The plaintiff sues for the use and occupation of a' building by the Woman’s Aid Nursery of Brooklyn from August 1, 1902, to June 11, 1903, at the rate of $45 monthly, the agreed .rental. The defendant, in addition to general denials, pleads in effect as a separate and distinct defense that the Woman’s Aid Nursery made a lease with the plaintiff on or about August 31, 1899, which covered the period in question ;■ that the indebtedness, if any, alleged in the complaint is for installments of rent due from the said corpora
The new matter must be regarded as pleaded as a complete defense. (Mott v. De Nisco, 106 App. Div. 154.) The interlocutory judgment must be reversed and the demurrer sustained, with leave to the defendant to plead over. The final judgment falls within the interlocutory judgment. (Carter v. De Camp, 40 Hun, 258.) I do not express any opinion contra to the proposition of law of the defendant that the Woman’s Aid Nursery could adopt this lease.
Hooker, Gaynor, Rich and^ Miller, JJ., concurred.
Interlocutory judgment of the County Court of Kings county reversed, with costs, and demurrer sustained, with costs, with leave to the defendant to plead over upon ]iayment.