and his affidavit has failed to attack the efficacy and safety of the method by which the plaintiff proposes to transmit its gas.
In this Circuit the law is explicit that summary judgment cannot be granted if there is a conflict of factual matter. Affidavits may be submitted and scrutinized by the court to ascertain whether such a conflict of facts exists or not, but they may not be used to determine the actuality of the facts. In Frederick Hart & Co. v. Recordgraph Corporation, 169 F.2d 580, 581, the Circuit Court of Appeals of the Third Circuit said: 'It is well-settled that on motions to dismiss and for summary judgment, affidavits filed in their support may be considered for the purpose of ascertaining whether an issue of fact is presented, but they cannot be used as a basis for deciding the fact issue. An affidavit cannot be treated, for purposes of the motion to dismiss, as proof contradictory to well-pleaded facts in the complaint. Farrall v. District of Columbia Amateur Athletic Union, 1946, 80 U.S.App.D.C. 396, 153 F.2d 647; United States v. Association of American Railroads, D.C. Neb. 1945, 4 F.R.D. 510; 2 Moore's Federal Practice (2nd ed. 1948) pages 2254, 2255.'
The same principle of law, above enunciated, has been applied to answers as well as complaints. Leigh v. Barnhart, D.C., 10 F.R.D. 279, U.S. v. Bernauer, D.C., 10 F.R.D. 400.
As pointed out by Judge Smith of this court in Rolle Mfg. Co., Inc. v. Marco Chemicals, Inc., 92 F.Supp. 218, the Court of Appeals of the Second Circuit has likewise advocated caution in the application of the rule authorizing summary judgment in the case of Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135, wherein Judge Frank said: 'We take this occasion to suggest that trial judges should exercise great care in granting motions for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to the facts, and a denial of that right is reviewable; but refusal to grant a summary judgment is not reviewable. Such a judgment, wisely used, is a praiseworthy timesaving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established. Denial of a trial on disputed facts is worse than delay. Cf. Arenas v. United States, 322 U.S. 419, 429, 433, 64 S. Ct. 1090, 88 L. Ed. 1363. The district courts would do well to note that time has often been lost by reversals of summary judgments improperly entered.' See also Colby v. Klune, 2 Cir., 178 F.2d 872.
Although the affidavits in support of the plaintiff's motion appear to have considerable strength and the affidavits of the defense on the issue of safety if not nearly so strong, the decision for this court at this time is not to determine the actuality of the fact, but only whether there is a controversy concerning it as has been emphatically pointed out by the foregoing authorities. The attach upon the qualification of the defendant's expert as well as upon the opinion expressed in his affidavit are matters that hinge themselves on facts and cannot be resolved except upon the production of the testimony itself in the court room upon final hearing. The resolution of this controversy as to safety will reflect itself in determining other issues raised in the case with regard to the zoning ordinance of the defendant and its element of reasonableness or unreasonableness as a burden on interstate commerce in the area in which the plaintiff is engaged.
It has been stated and not controverted that the entire project of the plaintiff is rapidly nearing completion and that it is under contract to deliver natural gas to a distributor in New Jersey on October 1, 1950.
In the light of the foregoing the motion for summary judgment will be denied but this case will be advanced upon the calendar so that both parties may have the benefit of as early a decision as possible. To that end a pre-trial conference will be held on Friday, September 8, 1950 at 11 A.M. and final hearing in the case will commence Thursday, September 14, at 10 A.M.
It has been well known that the plaintiff was desirous of installing its pipe line in the projected route since January of 1950 when it first made overtures to the defendant regarding it and the advancement of the date of trial as indicated herein should work no hardship on either party to this litigation. The necessity for speedy disposition of the cause in so far as the plaintiff is concerned is obvious, and by the same token the defendant must be equally desirous of having the matter disposed of so that the citizens of its community may be relieved of apprehensions of being exposed to unnecessary hazards.
An order should be taken conforming to the terms herein stated.
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