Berkshire Real Estate Co. v. Spaid

WOOLSEY, District Judge.

The motion to dismiss the complaint is denied.

An order will be entered consolidating this cause with Organizing & Developing Corporation, as Assignee of Mervin J. Spaid, v. Berkshire Real Estate Company, now pending on the Equity Docket as No. 57— 361,1 which, as admitted by both parties, involves the same issues as the present cause.

I. An election of remedies eannot, in my opinion, be predicated on the attitude taken by a defendant in his answer filed in another equity cause in the federal courts.

The defendant is not the actor in a case, and Equity Rule 30 (28 USCA §…