settled including, amongst others, the seventh defense. You undoubtedly realize that if this defense is available regardless of other considerations that we might be going through a lot of unnecessary work.
'I would appreciate your early advices.
'With kind personal regards,
'Sincerely yours, 'Emanuel Wagner'
I find from the record before me that this was the first time counsel for plaintiff was specifically advised that he had made an error in naming the New Jersey Interstate Equipment Corporation. True, defendant had entered general denials in the answers filed, but such general denials, under the circumstances now disclosed, were in no way sufficient to advise plaintiff that there were two corporations bearing the same name with different state paternities.
Rule 9(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., expressly provides that 'a denial of performance or occurrence shall be made specifically and with particularity,'(Emphasis added). I fail to find particularity in the answers now before me, hence plaintiff's attorney cannot be charged with lack of diligence in discovering his error as to the name of the defendant.
The opening paragraphs of the foregoing letter are misleading, and the new information given at the close is a mere self-serving declaration to cover up the lack of frankness indicated by counsel for defendant up to that moment. Bearing on this, counsel for defendant admitted in open Court as follows: 'By the Court: How long after you filed your answer was it before you discovered that no process had been served on the defendant the New York Corporation? Mr. Warner: Why I discovered it before I filed an answer.' Thus it appears that counsel for defendant knew before September 28th, 1943 that an error appeared in the name of the defendant, and merely filed a short, general denial with counter charges of contributory negligence to put plaintiff's counsel off guard until the Statute of Limitations ran its full course. Again it is my thought that such conduct is not praiseworthy. It explains, however, why the truth was so long kept from the Court and why the record is distended by immaterial moves as in a game where justice plays no part. Surely such conduct is not in conformity with the spirit of the rules of this Court which require such construction as 'to secure the just, speedy and inexpensive determination of every action.' It has no direct bearing here, however, since the question here is simply this: Was the New York corporation served with process as in time, and has it appeared in the cause. My answer was yes, in my original opinion, and it remains the same on reconsideration.
Independent research has disclosed the following cases upon which I rely to aid in sustaining my conclusion now, as well as that reached heretofore. These cases should be read in full and, therefore, I will not set up extracts from them: Marston v. F. C. Tibbetts Mercantile Co., 110 Me. 533, 87 A. 220; Porter v. Theo J. Ely, etc., D.C., 5 F.R.D. 317, opinion of Judge Gourley, Western District of Pennsylvania; Godfrey v. Eastern Gas & Fuel, etc., D.C., 71 F.Supp. 175, opinion of Judge Healey, U.S. District Court of Massachusetts. The case of Peters v. Public Service Corporation, 132 N.J.Eq. 500, 29 A.2d 189, affirmed 133 N.J.Eq. 283, 31 A.2d 808, has been urged as bearing upon the issues here. It is my thought that it has no direct bearing whatever, since in that case amendments had been denied and the complaints had been dismissed. Thereafter, and after the running of the Statute of Limitations, new suits had been instituted, and the State Court dealt strictly with the death action. Here the Court has held that the service of process and the complaints are good and sufficient and have been ab initio.
The motion to strike my earlier opinion is denied, and it is the order of the Court that the processes in these cases, the complaints, the answers and any other pleadings or papers filed in these cases be and the same are hereby amended to recite the name of the defendant as the 'Interstate Equipment Corporation, a corporation organized and existing under the laws of the State of New York.'
An order will be entered in conformity herewith.
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