Opinion
January, 1931.
Order in so far as it grants the motion to strike out the denials and the second and third defenses and counterclaims of the answer and directs summary judgment, and the judgment entered thereon, reversed upon the law and the facts, with ten dollars costs and disbursements, motion denied to that extent, with ten dollars costs, and judgment vacated. The alleged fraud set out in the second and third defenses is not subject to the plea of res judicata by reason of the decision in Heymann v. Viane ( 226 App. Div. 654). That was an action for the recovery of the down payment under a contract of sale of real property. The precise fraud alleged in the two defenses in the answer in this action was not pleaded in the former action and the withdrawal of the issue of fraud in that action plainly concerned merely the particular form of fraud there pleaded and unsuccessfully sought to be proved. The fraud pleaded in this action was not relevant to that action. A different situation would have existed in the record if the prior action had been one for specific performance, in which event the particular species of alleged fraud invoked in the two defenses in this action would have been relevant by way of barring the alleged dummy buyer from equitable relief if the transaction was tainted by the species of fraud invoked herein as a defense to this action, which is for brokerage in connection with a contract of sale which fell through by reason of a breach by the defendant seller. Lazansky, P.J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.