
    UNITED STATES, to Use of NICHOLS, v. UNION SURETY & GUARANTY CO. et al.
    (Supreme Court, Appellate Term.
    February 23, 1904.)
    Action by the United States of America, to the use and benefit of Adelbert S. Nichols, against the Union Surety <& Guaranty Company and others. From a judgment overruling its demurrer to the complaint, defendant company appeals. Affirmed. Van Sehaiek & Norton (Wilson B. Brice, of counsel), for appellant. Goeller, Schaffer & Eisler (Robert Goelier, of counsel), for respondent.
   PER CURIAM.

The defendant demurred to plaintiff’s complaint on the grounds: (1) That the plaintiff has not legal capacity to sue, because he has not obtained leave of the United States of America to bring this action; (2) that this court has not jurisdiction of the subject of the action; and (3) that the complaint does not state facts sufficient to constitute a cause of action. The questions presented under the first two grounds are fully controlled by the opinion and decision of the Appellate Division of this Department in Alexander, as Trustee, etc., v. Union Surety & Guaranty Co., 89 App. Div. 3, 85 N. Y. Supp. 282, and consequently they must be determined in favor of the plaintiff. That being ■ so, the complaint, as a whole, does state facts sufficient to constitute a cause of action. The judgment appealed from must be affirmed with costs.  