
    J. WARNER DUNPHEY, PLAINTIFF, v. JOSEPH L. WEINER, INDIVIDUALLY AND TRADING AS GARDEN STATE OIL COMPANY, DEFENDANT.
    Decided December 13, 1928.
    For the motion, Jacob L. Furer.
    
    
      Contra, Riggins & Davis.
    
   The opinion of the court was delivered by

Katzenbacji, J.

The plaintiff instituted a suit against Joseph L. Weiner, individually and trading as Garden State Oil Company, to recover upon a hook account. An answer was filed. The answer denied the indebtedness and that the same was due, and set up as a separate defense that any work done by the plaintiff for the defendant was done pursuant to contract. The plaintiff filed a reply. The plaintiff subsequently moved to strike out the answer as sham or frivolous. The motion was set down for September 11th, 1928. On that day it was postponed. Later in October the plaintiff was ready to argue the motion but counsel for the defendant were not present.

I am satisfied from the affidavits submitted by the plaintiff that there is no defense to this action. This is strengthened by the fact that no affidavits for the defendant have been filed notwithstanding the time given for that purpose. The difficulty which I have in following my inclination is due to an opinion in the case of Great American Indemnity Co. v. Gronowicz et al., 6 N. J. Mis. R. 821. In this case it is pointed out that where the plaintiff has elected to reply, he cannot thereafter make a motion to strike out the defense. I am, therefore, obliged to deny the motion.  