Pearlman v. Truppo

Ackerson, S. C. C.

This is the second time this matter has been before me upon motion. The first motion was for leave to amend defendant’s answer by setting up res adjudicata as a fifth separate defense. This motion was denied for reasons set forth in my memorandum now reported in 10 N. J. Mis. R. 477; 159 Atl. Rep. 623.

After said memorandum had been filed it was stipulated by the attorneys for the respective parties that the defendant might have leave to file the proposed amendment to his answer, upon the understanding that the court would then mould its memorandum as though upon a motion to strike out said fifth separate defense on the ground that the same is not res adjudicata and a bar to the present action, in order that an appeal might eventually be taken from the court’s action. In order to have the matter disposed of on its merits the parties have submitted a transcript of the proceedings in the former action which form the basis for this defense.

In this situation, therefore, I adopt my memorandum already filed in this matter, and for the reasons therein expressed, I hold that the motion to strike out said fifth separate defense should be granted, and an order may be presented in accordance with the conclusion thus reached.