The motion of defendant for judgment in its favor on the pleadings under Rule 12 (c), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is refused.
The reason assigned by defendant in support of its motion is: An insufficient denial by plaintiff of paragraph 10 of defendant’s answer. A reply under the Rules of Civil Procedure is required if the answer contains a counterclaim, denominated as such, and also, where the court orders a reply to an answer. Rule 7 (a). The defendant did not aver in his answer a counterclaim, and this court did not require, a reply to the answer filed.
I am of the opinion, that in view of the averments contained in the amended complaint, that the facts are not sufficiently clear to entitle defendant to judgment on the pleadings. Attention is called to the recent decision of the Supreme Court in the case of Hoffman v. Rauch, 300 U.S. 255, 57 S.Ct. 446, 81 L.Ed. 629.
In view of the history of this case, wherein it appears that some of the facts involved were before the Orphans’ Court of Blair County, Pennsylvania, and also before the Supreme Court of the same state, and that certain stipulations were made, it may be that the parties can stipulate the facts in this case and thereby obviate the taking of evidence.