Clarke, J.:
This is an appeal by the defendant Snedeker from an interlocutory judgment of the Special Term sustaining a demurrer to the further defense set up in his answer.
In Hawes v. Dunlop, No. 1 (136 App. Div. 629), upon .the appeal by Mrs. Dunlop from an interlocutory judgment overruling a demurrer to the same complaint, we have held that it did not state facts sufficient to constitute a cause of action. That being
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so this judgment sustaining a demurrer to the answer should be reversed, with costs, and the demurrer overruled, with costs, with leave to the respondent upon payment of costs in this court and in ■the court below to withdraw said demurrer. •
Ingraham, P. J., Labghlin, Scott and Milleb, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with Costs, with leave to respondent to withdraw demurrer on payment of costs.