
    Docket 149/268
    National House and Farms Association, Inc., a corporation of the State of New York, complainant, v. New York Sash and Door Co., Inc., a corporation of the State of New Jersey, defendant.
    [Decided October 7th, 1943.]
    
      
      Mr. Atwood G. Wolf, for the complainant.
    
      Mr. William N. Gurtman (Mr. Aaron Z. Schomer, of counsel), for the defendant.
   Lewis, Y. C.

This suit is now before the court on a motion to dismiss the bill. Defendant instituted an action at law based upon a contract for the sale and delivery of certain building materials. Complainant thereupon brought this suit to restrain the prosecution of the action at law, that the contract in question be reformed and that an account be taken thereunder. A motion for an injunction pendente lite was denied and the rights of the party held over until final hearing. The action at law was then tried, resulting in a dismissal of the complaint and of a counter-claim made by the defendant therein. An answer was thereafter filed in the present suit, setting up allegations as to the proceedings in the action at law, which it is contended disposed of any right of present complainant under his bill on the ground that the judgment in the action at law is res adjudicata. To this answer the complainant has filed a replication.

In my opinion, defendant is not entitled to dismissal of the complaint at this time, but the determination of the rights of the parties should be held over until final hearing, I do not consider that the question as to whether the issues in the present suit were determined in the action at law can properly be passed upon in the present status of the pleadings. The present suit was brought to reform the contract between the parties, whereas the judgment in the action at law was based upon the original contract. It is clear that the issues raised by the answer may be different from those which were passed upon in the action at law. It is true that defendant here has set up in its answer allegations at least tending to show that in the action at law the present complainant pleaded certain facts which would have bearing upon the question of reformation. Moreover, by the replication the allegations in the answer are put in issue. Issues which are raised with the pleadings cannot be decided on a motion. Therefore, the effect of the judgment at law should not be determined until the final hearing, and in the exercise of my discretion I so hold.

An order will be advised denying the motion for a dismissal of the bill and reserving the matter until final hearing.  