I dissent.
I am unable to distinguish this case from Smith v. Buttner and think, therefore, that the judgment herein should be affirmed unless we are willing to overrule that case, which has stood unchallenged for more than thirty years and has been cited with approval more than thirty times. The cases cited in the majority opinion are in full accord with that case, and no decision to the contrary has been cited. A comparison of the allegations of the complaint herein with those under consideration in Smith v. Buttner, on the one hand, and with those under consideration in Goldstein v. Healy, on the other hand, compels the conclusion in my mind that this case is ruled by Smith v. Buttner. That conclusion is confirmed byMerriam v. Hamilton, which expressly follows Smith v. Buttner.
I am also of the opinion that the special demurrer herein for uncertainty was well founded as to some of the particulars therein specified.
*Page 392Shenk, J., concurred.