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contract by the defendant set forth in paragraphs Tenth
and Eleventh of the complaint herein was also alleged in
the bill of complaint in the said former action; that
the damages, if any, resulting from the said alleged
breaches, if they were not included in the recovery ob-
tained by the plaintiff in the said former action, were
at any rate obtainable by the plaintiff in the said
former action and had already accrued when that action
was commenced; that the recovery obtained by the plain-
tiff in the said former action is a bar to the mainte-
nance of the present action.

"As a tenth, seperate and distinct defense to

the plaintiff's cause of action, defendant alleges:

Twenty-Sixth; Realleges and reiterates each of the allegations contained in paragraph Twenty-Fifth as though herein set forth in full.

Twenty-Seventh;

That on or about the 1st day of March 1936, a decree in plaintiff's favor was filed in the said former action, and that thereafter, the plaintiff voluntarily abandoned said contract and any and all performance on its part thereunder, and thereafter neglected, failed and refused to perform the same or to render any services thereunder.

Dismissing the complaint upon the ground that it fails to state a claim upon which relief can be granted pursuant to Rule 12 of the United States Rules of Civil Frocedure.

Granting judgment on the pleadings pursuant to Rule 12 (c) of the United States Rules of Civil Procedure.

Granting summary judgment to the defendant pursuant to
Rule 56 of the Rules of Civil Procedure.

And for such other and further relief as to the Court may seem just and proper.

The defendant, by its denial of the allegations in paragraphs 8 to 11 of the complaint, both inclusive, and in paragraphs 22 to 26 of the complaint, both inclusive, has raised an issue and therefore the plaintiff is not entitled to an order striking out the defendant's answer herein, granting summary judgment, or granting judgment on the pleadings, or striking out defendant's answer here as sham and frivolous.

Of course, the parties to this suit, being the same parties as in the Chancery suit in New Jersey, are bound by the Judgment in that suit, but the plaintiff, by the allegations of some of the paragraphs of its complaint in this case having placed its construction upon the proceedings had

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in the Chancery action in New Jersey, it was permissable for the defendant to deny the plaintiff's construction, and also to deny an incomplete statement of those proceedings.

Some of the separate defenses alleged by defendant are objectionable as having been determined adversely to defendant in the former trial towit: Second Separate and Distinct defense paragraphs 17 and 18; Third Separate and Distinct defense paragraph 19; Fourth Separate and Distinct defense paragraph 20; and these are stricken out. The remaining Separate and Distinct defenses depend upon the construction of the findings in the Chancery suit in New Jersey, and should be left to the determination of the Court, on the trial.

Plaintiff's motion to strike out the Second Separate and Distinct defense paragraphs 17 and 18; Third Separate and Distinct defense paragraph 19; Fourth Separate and Distinct defense paragraph 20, is granted, but, each and all of the plaintiff's other motions are denied.

The plaintiff has pleaded a right to recovery which appeers to be good, as a pleading, as to what has transpired since March 1st, 1936, and that being so, I cannot dismiss it and grant judgment on the pleadings, or summary judgment to the defendant, nor does it seem necessary to determine whether plaintiff can recover for anything which transpired before March 1st, 1936, as that will be determined on the trial.

Those motions of the defendant are denied.

The notions of the defendant for leave to amend its answer, by pleading three additional separate and distinct defenses, are granted, on condition that said amended answer be filed and served within ten days after the filing of the order to be entered hereon.

Settle orders on notice.

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