
    GAUSE, Respondent, v. COMMONWEALTH TRUST CO. OF NEW YORK, Appellant.
    (Supreme Court, Appellate Division, First Department.
    July 7, 1905.)
    Appeal from Special Term, New York County. Action by Harry T. Gause against the Commonwealth Trust Company. From an order overruling the defendant’s demurrer to the complaint, defendant appeals.
    Reversed.
    Charles E. Souther, for appellant.
    Howard Taylor, for respondent.
   McLAUGHLIN, J.

We think that this demurrer was not frivolous, and that the question as to the validity of the complaint should be determined upon in a trial of the issue of law raised by the demurrer. The order should be reversed, with $10 costs and disbursements, and the motion for judgment denied, with $10 costs. See 91 N. Y. Supp. 847.

PATTERSON and INGRAHAM, JJ„ concur. O’BRIEN, P. J., and HATCH, J., dissent.  