Defendant has ignored Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 784, in appealing instead of petitioning this Court for a writ of certiorari. However, under the particular circumstances here we have decided to pass on the appeal.

Decision in the instant case is controlled by the decision in Gay, Administrator v. Dr. G. R. C. Thompson, 266 N.C. 394, 146 S.E. 2d 425, the opinion in which is filed contemporaneously with the opinion in this case. Upon authority of the decision in that case, the learned judge below erred in overruling the demurrer in the instant case. He should have sustained it, and dismissed the action. The judgment below is

Reversed.