Opinion
December 20, 1960
Order entered May 5, 1960, denying defendant-appellant's motion to dismiss the complaint, reversed on the law, with $20 costs and disbursements to the appellant and motion to dismiss the complaint granted, with $10 costs. The complaint in the original action and the basis on which that action was tried contemplated a recovery not only on common-law negligence but also on statutory grounds. The plaintiff in that complaint alleged that the inflammable and combustible fluids were "illegally" stored. If in this new complaint he predicates his right to recovery under section 205-a Gen. Mun. of the General Municipal Law on that ground, i.e., illegal storage, then that issue could and should have been tried in the original case. The complaint was broad enough and the facts adduced sufficient to allow for a determination thereof. On the other hand if he predicates liability in the present case on the roof being defective he does not come within the meaning of that section. In any event the original complaint being sufficiently comprehensive to include liability under section 205-a Gen. Mun. of the General Municipal Law, he may not again in a new action retry that issue there presented.
Concur — Botein, P.J., Rabin, McNally and Noonan, JJ.; Stevens, J., concurs in the result only.