
    HENRY R. GOGAY vs. CARL A. HEINS
    Superior Court Fairfield County
    File #55668
    MEMORANDUM FILED SEPTEMBER 27, 1938.
    Nevas & Nevas, of South Norwalk, for the Plaintiff.
    Tammany & Connery, of South Norwalk, for the Defendant.
   QUINLAN, J.

The defendant has filed a motion to vacate clerk’s order in re oyer. The motion is erroneously signed “The Defendant” by Nevas & Nevas, his attorneys. Never' theless the motion to vacate should be passed upon. The plaintiff has set up Exhibit B as the written instrument upon which he relies. The rule simply requires by way of oyer that a copy, and not the original, be filed. This has been done.

It must be assumed that this is the only contract on which he relies and that he will not undertake on the trial to claim other memoranda as and for the contract. If that is his purpose copies of such memoranda should now be filed. If, however, there is memoranda in the way of exhibits which buttress the contract evidentially, I know of no requirement that his evidence shall be filed.

This does not mean that he can escape the effects of alleging a contract which he is bound to rely upon. There is no reason why a demurrer cannot be interposed to the pleading on the assumption that Exhibit B is the contract. The clerk’s order is modified in so far as to conform with this memorandum.  