The fact,that the agreement provided, in case of its violation by defendant, he should “be liable in damages and breach of contract” does not, in view of the circumstances, deprive plaintiff of the right to equitable relief. Lewis v. Gollner, 129 N. Y. 227, 234, 29 N. E. 81, 26 Am. St. Rep. 516; Diamond Match Co. v. Roeber, 106 N. Y. 473, 486, 13 N. E. 419, 60 Am. Rep. 464. Defendant’s counsel concedes that the demurrer is bad, inasmuch as it did not specify the parties failure to join whom constituted the defect. This defect in pleading could not be cured on the motion, under Code Civ. Proc. § 768.
The judgment and order should be reversed, with costs, and the demurrer overruled, with $10 costs, with leave to the defendant to withdraw the demurrer, and to answer upon payment of costs in this court and in the court below.