
    LEIGH v. BARNHART et al.
    Civ. No. 95-19.
    United States District Court D. New Jersey.
    April 6, 1950.
    William V. Azzoli, Newark, N. J., for plaintiff.
    Rothbard, Harris & Oxfeld, Newark, N. J., for defendants.
   FAKE, Chief Judge.

This is a motion for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. The motion is a written motion and reads as follows: “ * * * attorney for plaintiff, * * * will apply * * * for the entry of a judgment for the plaintiff for the relief demanded in the complaint, on the basis of the complaint, plaintiff’s further statement, affidavit with exhibits hereto, and defendants’ answer, upon the ground that no material issue of fact is raised by said pleadings and no legal defense is alleged in the answer, the defenses alleged therein being sham.”

This court is wholly without power to read an affidavit or statement against a well-pleaded allegation in an answer for the purpose of ascertaining the truth on a motion such as this. See Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 169 F.2d 580; Reynolds Metals Co. v. Metals Disintegrating Co., D.C., 8 F.R.D. 349, affirmed 3 Cir., 176 F.2d 90.

The motion is denied.  