March 29, 1966
Order entered November 22, 1965, denying respondents-appellants' motion to dismiss the petition pursuant to CPLR 3211 (subd. [a], par. 5) on the ground that the proceeding is barred by a final judgment of the Supreme Court, Westchester County, entered May 10, 1965 in an action in which petitioner was a party, unanimously reversed, on the law and on the facts, and the petition dismissed, with $50 costs and disbursements to respondents-appellants. The appeal from the order, entered November 18, 1965, setting the motion down for a hearing, dismissed, without costs or disbursements, as academic; and the appeal from the order, entered November 22, 1965, which denied motion to dismiss the proceeding on the ground that the petition does not state a cause of action on claim for relief under article 77 of the CPLR and ordering a hearing on the issues, dismissed, without costs or disbursements, as academic. Petitioner is the father of Burton N. Pugach, an incompetent, and co-committee of his person and property. This proceeding under article 77 CPLR was instituted to set aside and vacate a trust created by Burton N. Pugach on November 20, 1959 for the benefit of his divorced wife and daughter on the ground that the settlor was incompetent and insane at the time of the creation of the trust. In May, 1961 the settlor commenced an action in Supreme Court, Westchester County, to set aside the trust on the ground that, at the time of the creation of the trust, he was incompetent to manage his affairs by reason of lunacy. Burton N. Pugach was judicially declared incompetent by order of the Surrogate's Court, Clinton County, on June 28, 1962. The petitioner, together with Matthew H. Brandenburg, was appointed committee of the person and property of the incompetent by order of the Supreme Court, Westchester County, on May 16, 1963 and, on August 7, 1963, they were substituted as plaintiffs in the Westchester County action in place of the incompetent. The Westchester County action came to trial in October, 1964 and the plaintiffs duly appeared and were represented by their attorney, Lucien Nemser, Esq., although Paul B. Pugach, in his individual capacity as an interpleaded defendant, did not appear. The incompetent was produced at the trial. The trial court dismissed the complaint and held that the trust agreement was executed by the settlor of his own free will while he was competent to manage his affairs. The respondents-appellants' answer herein pleads as a separate affirmative defense that the judgment in the Westchester County action, entered May 10, 1965, is a bar to this proceeding. Petitioner's contention that he did not appear as a plaintiff in the Westchester County action and had no notice of trial is without merit. The doctrine of res judicata that an existing final judgment rendered upon the merits by a court of competent jurisdiction is binding upon the parties or their privies in all other actions on the points in issue and adjudicated in the first suit, is patently applicable here and the respondents' second, separate and complete defense is sustained. ( Israel v. Wood Dolson Co., 1 N.Y.2d 116; Good Health Dairy Prods. Corp. v. Emery, 275 N.Y. 14.)
Concur — Breitel, J.P., Rabin, McNally, Eager and Staley, JJ.