Duryee v. Parker ( 1905 )

Per Curiam :

Under the settled practice the appeal from the order demurrer must be dismissed. All the questions which the appellant seeks to raise are presented by the appeal from the judgment.

We think the demurrer to the separate defense set up in Y of the answer should have been sustained. That paragraph alleges in substance that in and by the agreement between the defendants and plaintiff’s assignors, the latter bound themselves te send defendants orders only from first-class firms, who would pay to defendants a commission of one per cent per bushel on the wheat sold by defendants for them, of which commission the defendants agreed to .credit plaintiff’s -assignors with three-eighths, and that "the first-class firms were to pay all cable expenses. There is no breach of this agreement alleged, the only allegations in this respect being “ that said first-class firms have refused to pay defendants any •of said commissions or cable expenses.” Why they refused, or what bearing their non-payment has upon the agreement alleged does not appear, and, talcing all the allegations of the paragraph together, we do not find any defense stated, and for this reason the •demurrer to it should, as already intimated, have been sustained.

As to the counterclaim, we think the allegations are sufficient .and, therefore, the demurrer to it was properly overruled.

It follows that the judgment appealed from should be modified by sustaining the demurrer to the separate defense, with leave, as to this defense, to answer over on payment of costs, and, as so modified, the interlocutory judgment should be affirmed, without costs -to either party upon this appeal.

Present — O’Brien, P. J., Patterson, Ingraham, McLaughlin .and Laughlin, JJ.

Judgment modified as directed in opinion, and as modified .affirmed, without costs.