
    SKIDDY COCHRAN, Resp’t, v. NELSON SMITH, App’lt.
    Action—When maintainable.
    Appeal from judgment overruling demurrer.
    
      Mel-on Smith, app'lt in person; II. D. Hotchhisi, for resp’t.
   Per Curiam.

—The case of Pfohl v. Simpson (74 N. Y., 137), expressly authorizes the maintenance of an action in form and substance like the one at bar. But the judgment is too sweeping, because it might be held under it that the defendant was not entitled to participate in the fund which might result from the judgment in this case.

The judgment should, therefore, be modified by permitting him, if he should not answer, which he'is permitted to do on payment of the costs of the demurrer, to prove his claim and get in that way his proportion of the fund mentioned.

The judgment as so modified should be affirmed, without costs.  