First Department, May, 1921. App. Div. 345] of the contract referring to delivery to a transportation carrier and prescribing the rights of the seller in the event that such carrier should for any reason refuse to accept the goods. If this construction may not be given as a matter of law, it surely may not be held as a matter of law, as the trial court ruled, that there was no obligation on the part of the seller with respect to delivery until the defendant came prepared to take and receive the goods, and the parol evidence received and stricken out was admissible to aid in the construction of these provisions. There is, I think, another serious obstacle to the plaintiff's right to recover. The action being between the parties to the acceptance and the acceptance having been expressly predicated on the contract, the case does not differ in principle from an action by the seller for the purchase price of the goods; and viewed in that light I am unable to see any theory on which the plaintiff could dispose of part of the goods sold to the defendant before the draft became due and recover on the contract as for full performance of its obligations thereunder. The defendant, however, failed to move for a dismissal at the close of the evidence, and although he moved for a dismissal at the close of the plaintiff's case and excepted to the denial of his motion, having failed to renew it at the close of the evidence, the exception is no longer available and may not be made the basis of decision by an appellate court. (Hopkins v. Clark, 158 N. Y. 299; Clements v. Beale, 53 App. Div. 416.) This point, therefore, is not presented for decision. It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. CLARKE, P. J., SMITH, PAGE and MERRELL, JJ., concur. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Second Department, June, 1921. [Vol. 197 THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY OF NEW YORK, Respondent, v. QUEENS COUNTY WATER COMPANY, Appellant. Second Department, June 3, 1921. Mandamus — application by city of New York for peremptory mandamus to compel extension of water system for fire protection writ denied where city's liability for compensation doubtful - alternative writ directed. - An application by the city of New York for a peremptory writ of mandamus to compel the defendant to install certain fire hydrants and to extend its line in compliance with executive orders of the municipal commissioner of water supply was improperly granted, since under the terms of the Greater New York charter, the power of the commissioner alone to contract and the obligation to pay for the new structural additions are in doubt, and, therefore, an alternative writ should have been directed. MILLS, J., dissents. APPEAL by the defendant, the Queens County Water Company, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Queens on the 3d day of December, 1920, granting relator's application for the issuance of a peremptory writ of mandamus to compel the Queens County Water Company to install forthwith at its own expense twenty-three new fire hydrants (also a new six-inch main in Bay Seventeenth street, for a distance of 100 feet) in the fifth ward of the borough of Queens (Rockaway Peninsula) in and along such public streets, mentioned in said order. Henry deForest Baldwin, for the appellant. Elliot S. Benedict [John P. O'Brien, Corporation Counsel, John F. O'Brien and Robert J. Culhane with him on the brief], for the respondent. PER CURIAM: Considering the peculiar situation of the parties, the majority of the court are of the view that a peremptory writ should not at first be issued. A serious difficulty has arisen as to compensation. Therefore, before the respondent should be coerced into obedience of these "executive orders" of the App. Div. 357] Second Department, June, 1921. municipal commissioner of water supply, defendant should have a hearing regarding such "executive orders," and how far they commit the city for compensation for such new hydrants, and for the additional outlays involved in such a water supply for fire extinguishing purposes. Where liability for compensation is plain, so that the service may be fairly recompensed, such a peremptory writ may be a proper remedy of the municipality. But under the terms of the charter of Greater New York, the power of the commissioner alone to contract, and the obligation to pay for the new structural additions, appear in doubt. Accordingly, instead of a peremptory writ, an alternative writ of mandamus will be directed. BLACKMAR, P. J., PUTNAM, KELLY and JAYCOX, JJ., concur; MILLS, J., votes to affirm upon the ground that the company has ample remedy under the statute, and a just public policy requires that the execution of the order shall not await the determination of the question of the fairness of the rate. Order modified so as to direct an alternative writ of mandamus. Settle order on notice. SAMUEL FALK, an Infant, by HARRY FALK, His Guardian ad Litem, Respondent, v. Roy H. MACMASTERS and JAMES A. CORCORAN, Trading under the Firm Name and Style of R. H. MACMASTERS & COMPANY, Appellants. Second Department, June 10, 1921. Pleadings - action by infant to recover money deposited for stock margin- demurrer to answer brought on by motion for judgment on pleadings properly denied if any portion of answer is sufficient – denial of knowledge or information as to plaintiff's infancy sufficient against demurrer effect of confession and avoidance as to denial frivolous denial not demurrable defense that plaintiff falsely represented his age is available defense that complaint does not state facts sufficient to constitute cause of action cannot be taken by answer. A demurrer to an answer and to separate defenses which is brought on by a motion for judgment on the pleadings cannot be sustained if any portion of the answer is sufficient. Second Department, June, 1921. [Vol. 197 In an action by an infant to recover money deposited for stock margin a denial of knowledge or information sufficient to form a belief as to the allegations of plaintiff's infancy and the appointment of his guardian ad litem are both sufficient to withstand an attack by demurrer. The defendant's denial of plaintiff's infancy was not waived by the subsequent defense that the plaintiff falsely misrepresented his age, even if such denial admitted in effect that the plaintiff was not of age. If a denial is frivolous the proper remedy of the plaintiff is to move to strike it out and not to demur thereto. In an action by an infant to recover money paid by him to stockbrokers for marginal purposes a defense based on the false and fraudulent representations by the infant that he was more than twenty-one years of age is valid, since an infant is responsible for his torts. The defense that the complaint does not state facts sufficient to constitute a cause of action cannot be taken by answer. APPEAL by the defendants, Roy H. MacMasters and another, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 23d day of March, 1921, granting plaintiff's motion for judgment on the pleadings. Theodore F. von Dorn, for the appellants. Benjamin Berinstein, for the respondent. JAYCOX, J.: The court at Special Term granted a motion made by the plaintiff for judgment on the pleadings. The pleadings consist of the complaint, an answer and a demurrer to the answer. The action is brought to recover moneys deposited by the plaintiff with the defendants to margin certain stock transactions conducted by the defendants, as brokers for the plaintiff, upon the ground that at the time of the deposit and of the transactions the plaintiff was and still is an infant. The answer denies knowledge or information sufficient to form a belief as to the allegations of the plaintiff's infancy and the appointment of his guardian ad litem. For a further answer the defendants allege that they were induced to act as brokers for the plaintiff and to accept his deposit and disburse it under his directions by false and fraudulent representations made by the plaintiff that he was more than twenty-one years of age. The answer further alleges as a separate and distinct defense that the complaint does not App. Div. 357] Second Department, June, 1921. state facts sufficient to constitute a cause of action. It also alleges for a second separate and distinct defense and for a setoff and counterclaim that the plaintiff falsely and fraudulently represented himself to be more than twenty-one years of age and deposited various moneys with the defendants as margin to apply to stock purchases made by the defendants under his direction and that, acting under his direction, the defendants expended and paid out $570.89 over and above the amount deposited by the plaintiff with them and prays for judgment for this amount. The plaintiff demurred to the so-called further answer and to the first separate and distinct defense on the ground that they are insufficient in law on the face thereof. The plaintiff also demurred to the defendants' so-called separate and distinct defense and setoff and counterclaim on the ground that the facts stated are not sufficient to constitute a counterclaim and as insufficient in law on the face thereof. The plaintiff did not bring his demurrer on as a motion and thus test the sufficiency of it as applied to any portion of the defendants' answer. On the contrary, his motion was for judgment and, if any portion of the defendants' answer was sufficient, the motion should have been denied. The denial of the plaintiff's infancy and of the appointment of a guardian are both sufficient to withstand an attack by demurrer. The Code of Civil Procedure, section 500, expressly authorizes a denial of any knowledge or information sufficient to form a belief as to any material allegation of the complaint. The plaintiff seeks to avoid this provision of the Code of Civil Procedure as to the denial of the plaintiff's infancy upon the ground that the defendants state in their further answer and also in their counterclaim that the plaintiff falsely and fraudulently represented that he was more than twenty-one years of age, the contention of the plaintiff being that this is an admission that the plaintiff was under twenty-one years of age at the time of these transactions. I think the answer cannot be thus construed. My attention has been called to no case holding that where a fact is sufficiently denied in one division of the answer to put the plaintiff to his proof, he can treat the denial as waived or proof dispensed with by reason of even an express admission of the fact |