Gause v. Commonwealth Trust Co.

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.