Opinion
March, 1916.
The demurrer is sustained as to the second defense and the seventh partial defense on the authority of McGrade v. City of New York ( 126 App. Div. 362); Moore v. Board of Education (121 id. 862; affd., 195 N.Y. 614) and Pitt v. Board of Education (216 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 Allen 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.