
    (28 Misc. Rep. 459.)
    BARKLEY v. WILLIAMS et al.
    (Supreme Court, Special Term, Onondaga County.
    July, 1899.)
    Pleading—Striking Out Frivolous Demurrer.
    A demurrer will not be stricken out as frivolous unless clearly and unquestionably without merit.
    Action by Orville M. Barkley against Stephen K. Williams and others. On motion oí plaintiff to strike out defendants’ demurrer to complaint.
    Denied.
    Frank C. Sargent, for the motion.
    Thomas Baines, opposed.
   HISCOGK, J.

The action is brought to recover damages against the defendants, who are attorneys, for their alleged improper management of an action brought by them in behalf of the plaintiff. Defendants have demurred to the complaint upon the ground that several causes of action are therein improperly united, and it is this demurrer which- plaintiff seeks to have stricken out as frivolous. The motion is denied, with $10 costs, to abide event It is too well settled to require discussion that relief of this kind will only be granted where the right thereto is perfectly plain and unquestioned. I do not think that that is this case. It would seem to me that the plaintiff has plainly united in his complaint one cause of action against defendants for negligent and unskillful conduct, and another one for intentional and willful wrongdoing. After various introductory allegations, he alleges in one place that the defendants conducted and prosecuted the action in behalf of plaintiff “in a negligent, unskillful, and improper manner,” and then alleges further on that they did “willfully delay said action with a view of their own gain,” etc. . These allegations plainly set forth two entirely distinct and different causes of complaint against the defendants. Not only that, but they are not consistent with each other. One is based upon incompetent, but unintentional, shortcomings; the other involves an affirmative intent and design to injure plaintiff.

Motion denied, with $10 costs to abide event.  