
    Warburton Hall Ass’n v. Flannery et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    1. Pleading—Complaint—Stating Cause op Action.
    A complaint alleged that one S. performed certain services for defendant B., which were reasonably worth a certain sum, and which B. promised to pay; that afterwards, and before action brought, S. assigned his claim for value to plaintiff; that no part of the claim has been paid; and that defendant F. “makes claim to said fund, but which claim is worthless, and said F. is defendant by interpleader; ” and demanded judgment against P. for the amount of the claim.' Held, that the complaint stated a cause of action.
    2. Same—Prayer op Judgment—Demurrer.
    The fact that the demand for judgment in a complaint is inappropriate is not a ground of demurrer.
    Appeal from city court of Yonkers.
    Action by the Warburton Hall Association against Patrick J. Flannery and the city of Yonkers. The cause of action is set forth in the complaint as follows: “The plaintiff, for a cause of action, respectfully shows to this court, upon information and belief—First, that the plaintiff and defendant said board of education in the city of Yonkers are corporations duly organized and existing under the laws of the state of Hew York, and so organized and existing at the times herein mentioned; second, that plaintiff and defendant said board of education now are, and were at the time of the commencement of this action, residents of the city of Yonkers, having their offices in, and transacting their business in, said city; third, that heretofore, and at all the times mentioned prior to the commencement of this action, Thomas Stratford and Ernest A. Lynde were civil engineers and surveyors, and formed a copartnership for business under the firm name of Stratford & Lynde; fourth, that during said co-partnership, and in the month of June, 1890, said firm was employed by defendant said board of education to do certain work, consisting of laying out the grounds, drawing plans, and superintending work in and about the new high school of defendant on South Broadway, Yonkers, and said work of said firm was reasonably worth the sum of one hundred and thirty-two and 50-100 dollars, ($132.50,) which said hoard promised and agreed to pay, and which became due and payable about September 1, 1890; fifth, that thereafter, and before the commencement of this action, said claim of Stratford and Lynde was duly assigned for value to the plaintiff, of all of which said board of education liad notice before the commencement of this action, but declined to pay in whole or in part; sixth, that no part of said claim has been paid, and that Patrick J., defendant, makes claim to said fund, but which claim is worthless, and said Flannery is defendant by interpleader. Wherefore, by reason of tile premises, plaintiff asks judgment against the defendant Patrick J. Flannery for the sum of one hundred and thirty-two and 50-100 dollars, ($132.50,) witli interest from September 1, 1890, besides costs.”
    From a judgment overruling a demurrer to the complaint, defendant Flannery appeals; and from an order denying in part plaintiff's motion to amend the case, plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      John F. Brennan, for plaintiff. F. X. Donoghue, for defendant Flannery.
   Pratt, J.

Although unartificial in form, the complaint contained a cause of action. It showed the existence of a cause of action, its assignment to plaintiff; that defendant claimed to hold it, and liad been made defendant in interpleader. The demand for judgment was inappropriate, but that is not ground for demurrer. The court properly overruled the demurrer, and upon expiration of the time given to answer over entered the proper judgment giving to plaintiff the fund in suit with the taxed costs. The judgment appealed from is affirmed, with costs. All concur.

APPEAL PROM ORDER.

By the affirmance of the judgment appealed from, the appeal of the plaintiff from the order refusing to amend the case loses all importance. Order affirmed, without costs. All concur.  