MEEKER v. LEHIGH VALLEY R. CO.

MEEKER v. LEHIGH VALLEY R. CO. (Circuit Court, S. D. New York. December 27, 1909.) Courts (§ 99)—Concurrent Jurisdiction. Where a demurrer to a complaint is sustained on the merits, the ruling is conclusive on a subsequent demurrer filed to the complaint with immaterial amendments, heard before another judge of the same court of concurrent jurisdiction. [Ed. Note.—For other cases, see Courts, Dee. Dig. § 99."] Action by Henry E. Meeker against the Eehigh Valley Railroad Company. On demurrer to complaint. Sustained. See, also, 162 Fed. 354. Shearman & Sterling (John A. Garver and William A. Glasgow, Jr., of counsel), for plaintiff. Alexander & Green (Frank H. Platt, Allen McCulloh, and George S. Franklin, of counsel), for defendant. For other cases see same topic & I number In Deo. ft Am. Dig*. 1907 to date, ft Rep’r Indexe* [MAJORITY — HOLT, District Judge.] HOLT, District Judge. This is a demurrer to an amended complaint. A previous complaint was demurred to, and the demurrer sustained by Judge Ray, with leave to amend. The complaint was then amended, and this demurrer filed. The present amended complaint, although considerably changed in form, in my opinion, states substantially the same cause of action as its predecessor. The grounds of Judge Ray’s decision, if correct, apply with equal force to the present amended complaint. In such a case the previous decision should be followed. If any other rule obtained, in any case in which a demurrer has been decided on the merits, it would always be possible, by making immaterial amendments, to have the same question brought on again before other judges successively. Such a proceeding is nothing, in fact, but an appeal from one judge to another. Without passing, therefore, at all upon the merits, I simply follow Judge Ray’s decision. Demurrer sustained.