Opinion
February 8, 1966
Appeal from an order of the Supreme Court, Schenectady County, dismissing appellants' complaint pursuant to CPLR 3211 (subd. [a], par. 5). In April, 1963, appellants served a complaint, which was dismissed for failure to state a cause of action, asserting materially the same claim as herein advanced. Since the order of 1963 did not specify that the dismissal was on the merits, technically the complaint in the new action cannot be dismissed on the grounds of res judicata (CPLR 5013; 5 Weinstein-Korn-Miller, pars. 5011.11, 5013.02). Nevertheless, the prior judgment, whether on the merits or not, is a bar to another action where as here "the defects or omissions adjudged to be present in the one action are [not] corrected or supplied by the pleadings in the other" ( Linton v. Perry Knitting Co., 295 N.Y. 14, 17; Flynn v. Sinclair Oil Corp., 20 A.D.2d 636, affd. 14 N.Y.2d 853; Restatement, Judgments, § 50, Comments c, d). Order affirmed, with costs. Gibson, P.J., Herlihy, Aulisi and Hamm, JJ., concur.