Opinion
June 22, 1959
Appeal from so much of an order as denied appellants' motion to dismiss the complaint on the ground of res judicata (Rules Civ. Prac., rule 107, subd. 4). Order insofar as appealed from affirmed, with $10 costs and disbursements. The defense of res judicata has no possible application to the fourth cause of action pleaded, and the motion to dismiss on that ground, having been addressed to the complaint as a whole, was properly denied. (Cf. Andrews v. 98 Montague, 282 App. Div. 1066; Oshins v. Zimmerman, 284 App. Div. 989; Adamo v. P.G. Motor Frgt., 4 A.D.2d 758.) Moreover, in our opinion, the other causes of action alleged are not barred by the doctrine of res judicata. The judgment of the City Court of the City of New York, relied upon by appellants, involved a cause of action different from those here alleged, and the issues in the instant case were not there decided nor necessarily involved. (Cf. Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304; Smith v. Kirkpatrick, 305 N.Y. 66; Cromwell v. County of Sac, 94 U.S. 351.) Nolan, P.J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.