
    Walter C. Lafferty v. The Empire Fur Company, Inc., et al.
    Superior Court Fairfield County
    File No. 103680
    Memorandum filed October 17, 1957.
    
      Shannon & Wilder, of Bridgeport, for the plaintiff.
    
      Goldstein & Peck, of Bridgeport, Theodore A. Gemza and Norman A. Buzaid, both of Danbury, for the defendants.
   Troland, J.

This is an action to foreclose a claimed mechanic’s lien, commenced on May 23,1957.

The defendants have moved that the complaint be erased for want of jurisdiction over the subject matter. No want of jurisdiction appears from examination of the complaint. However, defendants allege in their motion that a previous action brought by the plaintiff to this court, against the same parties, containing identical allegations, was tried to the Superior Court in Fairfield County and a non-suit was entered thereon after completion of plaintiff’s presentation of evidence on November 16, 1956; that no motion to set aside the nonsuit was made, under provisions o£ § 3183d of the General Statutes; and that, therefore, this court has lost all further jurisdiction over the subject matter.

The court has taken judicial notice of the file in the earlier case and notes that a nonsuit was entered in said case as alleged and that no motion to set aside the nonsuit was made. However, the plaintiff’s election not to pursue this remedy does not deprive him of his right to bring a new action for the same cause of action within one year, as provided by General Statutes § 8332.

It should be noted that a motion to erase, containing allegations of fact, requiring proof, was an improper way to raise the point decided herein. Paiwich v. Krieswalis, 97 Conn. 123, 126; Equitable Trust Co. v. Plume, 92 Conn. 649, 652.

The motion to erase is denied.  