
    MASON v. NEW YORK CENT. R. CO.
    Civ. No. 3886.
    United States District Court W. D. New. York.
    Jan. 20, 1949.
    Glenn L. Buck, of Rochester, N. Y., for plaintiff.
    Harris, Beach, Keating, Wilcox & Dale, of Rochester, N. Y., for defendant.
   BURKE, District Judge.

This is a motion by defendant for summary judgment. The action is brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The answer puts in issue all the allegations of the complaint except that at the time and place alleged in the complaint the defendant owned and operated a railroad in interstate commerce. The papers in support of the motion deal only with the question whether the cause of action for injuries alleged to have occurred on October 16th, 1945 during the course of plaintiff’s employment by defendant was released under an alleged general release given in connection with the termination of a prior action in the state court, brought to recover damages for injuries growing out of the same occurrence. The defendant asks the court to disregard the plaintiff’s affidavit in opposition to the motion, under subdivision (e) of Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which deals with the form of affidavits. Although it may be conceded that the plaintiff’s affidavit does not conform with the requirements of subdivision (e), there emerges from the maze of plaintiff’s argument on the motion the somewhat unclear indication that he desires to raise the question that the release was invalid by reason of mutual mistake of fact and because of fraud in its procurement. Such a substantial question should not be resolved upon procedural grounds nor without affording the plaintiff full opportunity to demonstrate by evidence the basis of his contentions, if he be so advised. So that the is•sues may be clearly defined, the plaintiff shall serve a reply to defendant’s answer.

Motion denied.  