¶1The fact that the agreement provided, in case of its violation by-defendant, he should c ‘ be liable … in damages and breach of contract” does not, in view of the circumstances, deprive plaintiff of the right to equitable relief. (Lewis v. Gollner, 129 N. Y. 227, 234; Diamond Match Co. v. Roeber, 106 id. 473, 486.) Defendant’s counsel concedes that the demurrer is bad, inasmuch as it did not specify the parties, failure to join whom constituted the defect. This defect in pleading could not be cured on the motion, under the Code of Civil Procedure, section 768.
¶2The judgment and order should be reversed, with costs, and the demurrer overruled, with ten dollars costs, with leave to the defendant to withdraw the demurrer and to answer upon payment of costs in this court and in the court below.
¶3Present — Ingraham, P. J., Laughlin, Clarke, Scott and Hotchkiss, JJ. ' ■
¶4judgment and order reversed, with costs, and demurrer overruled, with ten dollars costs, with leave to defendant to withdraw demurrer and answer on payment of costs.