
    HAWN v. AMERICAN S. S. CO.
    No. 58.
    District Court, W. D. New York.
    Jan. 13, 1939.
    Desmond & Drury, of Buffalo, N. Y., for plaintiff.
    Harold J. Adams, of Buffalo, N. Y., for defendant.
   KNIGHT, District Judge.

Defendant moves to dismiss the complaint for lack of jurisdiction of this court of the subject matter of' the action. The motion is made pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The complaint alleges a cause of action in negligence. It alleges that the plaintiff was a seaman,' member of the crew of a vessel owned and operated by the defendant. Defendant’s motion to dismiss is supported by affidavits directed to show that the plaintiff was not engaged as a “seaman.” Plaintiff asserts that the allegations of the Complaint with respect to the nature of plaintiff’s employment must be considered to be true; in other words, that the motion can be granted only if, assuming the allegation to be true, the court does not have jurisdiction. Without passing on this question and after considering the affidavits submitted in support of the motion, it seems to me the court in the exercise of its discretion under Rule 12(d) should defer the hearing and determination of the motion until the trial herein. Order may be submitted accordingly.  