
    Parrish, etc., v. Delaware, Lackawanna & Western Railroad Company
    
      Stark, Bissell & Griffith, for plaintiff.
    
      Gomer W. Morgan and O’Malley, Harris, Harris & Warren, for defendants.
    December 20, 1948.
   Hoban, P. J.,

— In this action of trespass to be reimbursed for the difference in value between the cost price and the forced sale price of goods consigned to plaintiff but alleged to have been damaged in transit, the last of a series of pleadings and amended pleadings is an amended answer to plaintiff’s amended complaint. By this amended answer, under the heading of new matter, defendant sets up as an affirmative defense that plaintiff is barred from instituting this action or prosecuting it to judgment for failure to register under the Fictitious Names Act of May 24, 1945, P. L. 967, prior to commencing this action. The new matter, of course, sets forth the various dates in question. It seems to us that the new matter calls for a reply rather than a preliminary objection in the nature of a demurrer to new matter, for after the facts are established the particular effect of the Act of 1945 on plaintiff’s right to sue may be tested on motion for judgment after the pleadings are closed. See opinion of Robinson, J., filed October 25,1948, sur defendant’s motion to amend its answer.

Now, December 20, 1948, the preliminary objections to new matter are overruled, plaintiff to plead over in 10 days.  