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CROMWELL v. HILLSBOROUGH TP.

DISTRICT COURT, D. NEW JERSEY


January 7, 1944

CROMWELL
v.
HILLSBOROUGH TP., SOMERSET COUNTY, N.J., et al.

The opinion of the court was delivered by: FAKE

FAKE, District Judge.

A motion to amend and supplement the complaint herein was heretofore denied on the grounds set forth in an opinion reported in D.C., 49 F.Supp. 908. Thereafter a motion for reconsideration was directed to the court resulting in extended oral argument and the submission of exhaustive briefs. Upon a reading of the briefs and a consideration of the several important and somewhat novel issues involved, I have come to the conclusion that the amendment should be allowed to the end that the plaintiff may have the benefit of an appeal if on motion to strike I remain convinced of the soundness of my opinion above cited. I am constrained to do this by the convincing language of Judge Lacombe in Oregon & Transcontinental Co. v. Northern Pacific, C.C., 32 F. 428, wherein he says: "The practice in this court touching applications, under the fifty-seventh rule, for leave to file supplemental bills, has always been liberal to the applicant. Rightly so, because the granting of such leave rests so largely in discretion that an unfavorable decision would practically debar the applicant from vindicating the sufficiency of his pleading, or the equity of his cause of action before the appellate court. This court will not, therefore, on such an application, proceed to try the cause, and to determine questions which may more appropriately be raised by demurrer. While in the case at bar, and upon the facts set forth in the supplemental bill, there may be grave doubts as to the complainant's right to the relief prayed for in such bill, that issue will not be tried on this motion."

An order will therefore be entered now allowing the amended and supplemental complaint to be filed. A motion may then be made to strike and if agreeable to counsel the briefs heretofore submitted will be considered as applicable to the motion to strike.

19440107

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