Providence & Worcester Railroad v. N. Y., N. H. & H. R. R.

5 R.I. Dec. 99

Opinion

TANNER, P. J.

This iSi a bill in equity seeking specific performance of an agreement between the parties to the case contained in a lease by the complainant to the N. Y., N. H. & H. R. R. Co.

The 'bill is somewhat voluminous and contains a number of different allegations and prayers for relief. The bill has been heard upon a demurrer raising numerous more or less difficult points.

We have studied the very able briefs presented by both sides in this case and feel that while some of the grounds of the demurrer may be meritorious we are not prepared to dismiss the bill. It would, therefore, be necessary to try the case upon its merits. We feel that the demurrer raises many technical questions which the court would be in a better position to determine on a hearing upon the merits rather than upon a demurrer.

This course will also avoid the very possible result of having the case sent back to this court for a further hearing thus entailing unnecessary expense and loss of time. We therefore shall overrule the demurrer to the bill without prejudice to the right of the respondents to raise any of the questions urged in the demurrer upon a hearing of the bill on its merits.