Opinion
January 9, 1969
Appeal from the Court of Claims.
Present — Bastow, P.J., Goldman, Del Vecchio, Marsh and Witmer, JJ.
Judgment unanimously reversed on the law and facts, without costs, and claim dismissed. Memorandum: The trial court erred in holding that the determination of the City Court of Rome suppressing property removed by the officers from claimant's home was res judicata upon it. The extent of the proof required on the suppression hearing differed from that needed in this civil action, and the City Court order was not res judicata herein ( Schindler v. Royal Ins. Co., 258 N.Y. 310, 312-313; Massey v. Meurer, 25 A.D.2d 729; Richardson, Evidence [9th ed.], § 369, p. 353). The issue as to whether claimant consented to the entry of the officers into her home and to the removal of the two items of supplies was fully tried, and the court should have determined it. The record shows that the State sustained its burden of proving by a preponderance of the evidence that the claimant did consent and that there was no illegal search and seizure.