Opinion
July Term, 1899.
While the right to maintain this action in its present form is not free from doubt, still as it is brought in accordance with the view expressed by us on the prior appeal, we think we should adhere to our former decision and allow the question to be finally determined by the Court of Appeals. Interlocutory judgment reversed and judgment directed for plaintiff on demurrer, with costs, with leave to the defendant to withdraw demurrer and serve answer on payment, within twenty days, of the costs of the demurrer and of this appeal. Leave is also granted to the defendant to appeal from this judgment to the Court of Appeals. All concurred, except Bartlett, J., who is of the opinion that the complaint, in the present action, is not framed in accordance with the views expressed by this court in its previous decision.