Opinion
November, 1908.
Present — Patterson, P.J., Ingraham, Laughlin, Clarke and Scott. JJ.
While this complaint contains much irrelevant matter, and there is a somewhat confused statement of the material facts, there is clearly a cause of action for damages based upon the conspiracy between the defendants to defraud the plaintiff by inducing intoxication and obtaining from him while in an unconscious condition as the result of such intoxication a transfer of his interests in the corporation. It is clear, therefore, that the demurrer was frivolous. We think, however, that the defendant should have been allowed to answer the complaint. The order appealed from is, therefore, modified by adding thereto a clause allowing the defendant to withdraw the demurrer and answer the complaint within twenty days after the service of a copy of the order of this court upon payment of the costs of the action, and ten dollars costs of the motion for judgment, and as modified affirmed, without costs to either party on this appeal.
Order modified as directed in opinion, and as modified affirmed, without costs of this appeal.