
    (53 Misc. Rep. 469)
    People v. McClellan.
    (Supreme Court, Special Term, New York County.
    March, 1907.)
    Pleading—Demurrer—Motion for Judgment.
    Where on demurrer to the complaint a motion is made for judgment on the ground that the demurrer is frivolous, it cannot be granted where it raises a question that is doubtful.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 1063.]
    Action by the people against George B. McClellan. Motion for judgment on demurrer to the complaint. Overruled.
    See 104 N. Y. Supp. 447.
    W. S. Jackson, Atty. Gen., for the People.
    E. R. Richards, for defendant.
   GREENBAUM, J.

The complaint in this action is framed with allegations and a prayer which indicate that the Attorney General exercised the discretion conferred upon him under section 1949 of the Code of Civil Procedure to “set forth therein the name of the person rightfully entitled to the office and the facts showing his right thereto.”' The effect of such a pleading would be to permit a judgment not only for ouster of the alleged usurper, but a determination that the person alleged to be entitled to the office was lawfully elected to the office of mayor of the city of New York. I am not prepared to say upon an inspection of such a pleading that a demurrer upon the ground that Mr, Hearst, the person named in the complaint as the one entitled to the office, is a necessary party, is so palpably bad that it may be treated as a frivolous pleading. It is unnecessary upon a motion of this character to consider the question as to whether the demurrer is or is not well pleaded; it being sufficient to be satisfied that the legal question raised by the demurrer is doubtful. Motion for judgment denied.

Motion denied.  