Albright v. Trinity Presbyterian Church

Kruse, P. J. (dissenting):

I concur in the holding that the demurrer to the complaint was properly overruled, and that the judgment should be modified so as to permit the defendant church to withdraw the demurrer and answer the complaint upon the usual terms. But I am also of the opinion that the demurrer by the defendant church to the answer of the defendant Fisher, which sets up an affirmative cause of action on his lien, was permissible. His cause of action is entirely unrelated and disconnected from that set up in the complaint, except that it covers the same property. Under the Lien Law the plaintiff was required to make the defendant Fisher a party, and the latter is required to enforce his lien in this action. As between the defendant Fisher and the church, such an answer should be regarded as a complaint. (Mellen v. Athens Hotel Co., 149 App. Div. 534.) Otherwise there seems to be no provision for serving any pleading to controvert the Fisher claim. There is as much authority for serving a demurrer as an answer to such a pleading. Treating the pleading demurred to, as between these two defendants, as a complaint (which I think it is in fact as between them) relieves the question of practice from difficulty and embarrassment.

I think this demurrer was permissible, and that it was properly overruled, but the judgment should be so modified as to permit the church to answer upon the usual terms.

Judgment, order amending same and order directing final judgment in favor of defendant Fisher reversed, and an interlocutory judgment directed in favor of plaintiff overruling demurrer to complaint, with leave to defendant Trinity Pres*76byterian Church to withdraw its demurrer to the complaint within twenty days and to answer the complaint, and in case such leave is not availed of within said twenty days, plaintiff and defendant Fisher may, after the issues raised by said Fisher’s answer have been tried or otherwise disposed of, apply at Special Term for final judgment, without costs of this appeal to any party.