Opinion
May, 1916.
The two orders appealed from involve the same question, to wit, the sufficiency of the first cause of action stated in the complaint, and for convenience have been argued and will be considered together. We have examined the cause of action demurred to and have carefully compared it with the complaint as to which a demurrer was sustained by this court on a former appeal ( 164 App. Div. 878), and are unable to find any substantial difference between them or any difference at all except slight changes in the matter of verbiage. Upon the authority of our former decision, therefore, the cause of action demurred to is insufficient in law. It follows that, in so far as appealed from, each order must be reversed, with ten dollars costs and disbursements, and the demurrer to the first cause of action sustained and the motion for judgment upon said cause of action granted, with ten dollars costs. Inasmuch as this is plaintiff's third attempt to frame a sufficient complaint no leave to further amend will be granted. Clarke, P.J., McLaughlin, Smith and Davis, JJ., concurred. Orders reversed, with ten dollars costs and disbursements, and demurrer to first cause of action sustained, and motion granted, with ten dollars costs.