Opinion
March, 1920.
Order affirmed, without costs. Prior to the argument of defendants' motion for judgment upon the pleadings, the court heard and granted a motion to strike out one of the plaintiffs, substituting him as a party defendant, amending the summons and allowing service of an amended complaint. This order is the subject of a separate appeal, decided herewith. [ Brown v. Maze Realty Co., No. 1, ante, p. 921.] The order obviated the objection as to misjoinder presented by the demurrer. As to the objection that the complaint does not state facts sufficient to constitute a cause of action, it is not drawn with all the accuracy which might be desired, and the allegation that the former action was settled for "certain considerations" may be open to criticism as presenting subject-matter for an attorney's lien. But upon all of the facts alleged and the legitimate inferences therefrom, to be resolved in plaintiffs' favor upon this motion, we think the allegation was good against demurrer. The court has allowed service of an amended complaint which will take the place of the pleading now criticized, and the learned counsel for defendants appears to concede in his points upon this appeal that there was a money payment upon the settlement made without knowledge of the plaintiffs. Jenks, P.J., Mills, Blackmar, Kelly and Jaycox, JJ., concur.