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UNITED STATES v. 21

November 5, 1943

UNITED STATES
v.
21,815 SQUARE FEET OF LAND, MORE OR LESS, IN BOROUGH OF BROOKLYN, KINGS COUNTY, NEW YORK, et al.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

The petitioner-plaintiff has made a motion herein for an order striking out the answer to the amended petition filed in this proceeding by the defendant, The Manufacturers Trust Company, as trustee.

The grounds of the motion are:

 "I. That said Answer does not constitute a defense to said proceeding and is improper, unauthorized and contrary to the established practice and procedure in such proceedings.

 "II. That said Answer does not constitute a defense or raise triable issues in said proceeding.

 "III. That the questions raised by said Answer are res adjudicata and have been previously raised and determined by this Court in this proceeding.

 Quite aside from the question of the insufficiency of the answer, the answer contains matter which should not be alleged in a pleading; for example, in the "first separate and partial defense" it alleges the contends of papers on file in this action and sets forth portions of the petition which has since been amended and also recites orders made by the court and their contents.

 The petition is not before the court; the amended petition, which was filed July 9, 1943, is. It seeks the following relief:

 "1. That it may adjudge that the public use requires the condemnation of the exclusive use, occupancy and possession of the land hereinbefore described for the term herein provided.

 "2. That it may adjudge that the Petitioner is entitled to hold the exclusive use, occupancy and possession of the land hereinbefore described for the public use and for the term herein stated, upon making compensation therefor.

 "3. That it may adjudge the fair market value and just compensation which should be paid by the Petitioner-Plaintiff for the exclusive use, occupancy and possession of said land hereinbefore described for the term herein stated.

 "4. That there may be taken such action and that there may be passed such orders, decrees and judgments as may be necessary or proper, fully to effectuate the objects of the aforesaid Acts of Congress, in so far as they relate to the acquisition of the above particularly described land, and cause the land described in this petition to be condemned and taken by the United States of America; and the Court shall order distribution of the compensation to the parties thereto entitled, according to their respective rights, interests and ownerships.

 "5. That it grant such other and further relief as the nature of the case may require."

 Under the amended petition the court is asked to determine that the public use requires the condemnation of the exclusive use, occupancy and possession of the premises, and that the petitioner is entitled to hold the exclusive use, occupancy and possession of the property for the public use for the term contemplated and that the court adjudge the fair ...


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