Opinion
March 11, 1910.
Frank Walling [ Harvey J. Cohen with him on the brief], for the appellant.
A. Joseph Geist [ Henry Swartz with him on the brief], for the respondent.
Present — INGRAHAM, P.J., LAUGHLIN, CLARKE, SCOTT and MILLER, JJ.
The questions presented by this appeal are the same as those presented in the case of Adams v. Schwartz ( 137 App. Div. 230), argued and decided herewith. The plaintiff in this action was also a bill-poster, and claims to have been arrested and maliciously prosecuted at the same time and place and under like circumstances, and the defendant likewise counterclaimed against him for trespass.
On the authority of the opinion in the other action the interlocutory judgment should be reversed, with costs, and demurrer sustained, with costs, but with leave to defendant to serve an amended answer, omitting the counterclaim, on payment of the costs of the appeal and of the demurrer.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.