
    Harry M. Connelly vs. Boston Sand & Gravel Co. & others.
    September 10, 1976.
    
      Alfred P. Farese, Jr., for the plaintiff.
    
      Robert A. Curley (Eugene X. Giroux with him) for the defendants.
   The judgments in a prior case in favor of the defendants in this case do not bar this action. Those judgments were entered after demurrers were sustained on August 23, 1972; after a motion to amend the declaration was filed on August 30, 1972 (within the time provided in Rule 23 of the Superior Court [1954]); and after the denial on October 11, 1972, of what was apparently a substitute motion to amend filed on October 2, 1972. The demurrers were based on matters of form and substance and were sustained generally. There is nothing to indicate that the demurrers were sustained on any particular ground going to the merits (see Hacker v. Beck, 325 Mass. 594, 598 [1950]) or that the motion to amend was denied because the amendment failed as matter of law to cure a defect, if any, in the declaration. Sullivan v. Farr, 2 Mass. App. Ct. 815 (1974). Contrast Martin v. Hunt, 352 Mass. 774 (1967); Osserman v. Jacobs, 369 Mass. 200, 202-205 (1975). Accordingly, the defense of res judicata is not available to the defendants. (All the proceedings in the Superior Court in this case and in the earlier case occurred prior to the new rules of civil procedure. See Osserman v. Jacobs, 369 Mass. 200, 205-206 [1975].) The orders sustaining the answers in abatement are reversed.

So ordered.  