125 N.Y.S. 305 | N.Y. App. Div. | 1910
Appeal from an order denying plaintiff’s motion for judgment on the pleadings. The motion tests the sufficiency of a demurrer to the complaint interposed by the defendant Milton M. Dryfoos, individually.
The plaintiff and the defendants are the executors and trustees under the last will and testament of Karl M. Wallach, deceased, and it is manifest that their relations are inharmonious. The complaint contains eight causes of action, each of which alleges that the testator in his lifetime had loaned certain sums of money to the defendant Dryfoos. The first cause of action sets forth an agreement on the part of Dryfoos to repay a sum of money specified in that cause of action upon a given day, and specifically alleges that said defendant had not repaid it. The other seven causes of action do not set forth an agreement tó pay upon any given'day, but, after stating the amount loaned, allege “ which the said defendant Milton M. Dryfoos promised and agreed to repay, no part of which has been paid, and at the time of the death of said testator and ever since
Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to respondent to withdraw demurrer and answer within ten days upon payment of said costs and the costs of the action to date.