Opinion
Submitted February 14, 1941 —
Decided April 25, 1941.
Where, as here, the matter by which it is proposed to present a new legal situation was available to relator when he filed his original pleading, he is bound by his pleading as filed and will not be permitted to litigate his claim anew on a different theory.
On appeal from a judgment of the Supreme Court, whose opinion is reported in 125 N.J.L. 208.
For the relator-appellant, Joseph C. Paul.
For the defendant-respondent, Milton M. Unger.
Upon the merits of the judgment under review, we concur in the opinion delivered by Mr. Justice Parker in the Supreme Court.
After the decision of the Supreme Court on the merits, relator sought to amend or supplement the information and to have a re-argument on a new legal issue thereby presented.
The Supreme Court held: "The matter by which it is proposed to present a new legal situation was available to the relator when he caused his original pleading to be filed. We think in justice to the defendant that the relator should be bound by his pleading as filed and should not now be permitted to litigate his claim anew on a different theory."
We conclude that there was no error in the conclusion of the Supreme Court in denying the application for re-hearing.
The judgment is accordingly affirmed.
For affirmance — THE CHANCELLOR, CASE, BODINE, DONGES, HEHER, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 13.
For reversal — None.