Bones v. Ridgewood Savings Bank

243 A.D. 790, 278 N.Y.S. 166

Opinion

Order dismissing the complaint on the ground that there is an existing final judgment of a court of competent jurisdiction, rendered on the merits, determining the same cause of action between the parties, entered pursuant to rule 107 of the Rules of Civil Practice, affirmed, with ten dollars costs and disbursements. The plaintiff here is bound by the discovery proceeding instituted by him as administrator in the Surrogate’s Court because of the defendant’s privity to both the petitioner and the respondent in the Surrogate’s Court. (Hughes v. U. P. Lines, 119 N. Y. 423; Nichols v. MacLean, 101 id. 526.) If, as the plaintiff here contends, the question of the authority of the defendant bank to deposit the proceeds of the drafts which are the subject-matter of this action to the joint account of the intestate and the respondent in the Surrogate’s Court proceeding was not an issue in the discovery proceeding, it should have been litigated, since it was necessarily involved. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) Hagarty, Carswell, Scudder, Tompkins and Davis, JJ., concur.