Opinion
December 29, 1939.
Weissberger Leichter, of New York City, for plaintiff.
Davis, Polk, Wardwell, Gardner Reed, of New York City, for defendants.
On reargument.
Prior decision adhered to.
For former decision, see 30 F. Supp. 389.
The defendants move for reargument of certain sections of their original motion. On December 6, 1939, in a written opinion, the court disposed of the motion in the following manner: Section 1, granted in toto; section 2, granted in part only; section 3, denied with two exceptions; section 4, denied in toto; section 5 was not passed upon. This reargument concerns only sections 3, 4, and 5.
I have again re-examined the marked complaint, the original briefs submitted, as well as the additional ones furnished on the reargument. Nothing, as I see it, has been presented to which I have not given consideration in the first instance, and I will accordingly stand by my original ruling.
Since the defendants raise the point that section 5 was not passed upon in my original decision, a few words of explanation are in order. I did not, nor do I now consider section 5 (which seeks to direct plaintiffs to serve and file a corrected pleading) as a separate motion but rather in the nature of incidental relief dependent upon the disposition of the other sections of the motion. In view of that disposition, I see no necessity for the service of a corrected pleading (the new Federal Rules, 28 U.S.C.A. following section 723c, treat only of amended and supplemental pleadings). It may even be that a corrected pleading would result in confusion and bring about new motions addressed to such corrected pleading.
Reargument is granted but the original decision is adhered to.