Erbe v. Lincoln Rochester Trust Co.

New York Court of Appeals

Erbe v. Lincoln Rochester Trust Co.

156 N.E.2d 460, 5 N.Y.2d 886

DecidedJanuary 8, 1959

StatusPublished

This text of 156 N.E.2d 460 (Erbe v. Lincoln Rochester Trust Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Erbe v. Lincoln Rochester Trust Co., 156 N.E.2d 460, 5 N.Y.2d 886 (N.Y. 1959).

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Opinion

Per Curiam.

Our determination that the action, relief requested, rights and interests affected, and issue®, set forth in the complaint differed from the prior proceedings before the Surrogate of Monroe County precludes the assertion of the defense of res judicata under -any circumstances. (Erbe v. Lincoln Rochester Trust Co., 3 N Y 2d 321.) As we previously held, the complaint states a cause of action in actual fraud. It follows, -therefore-, that the motion to strike paragraph 43 of the answer setting forth the defense as to certain allegations in the complaint should have been granted in accordance with our previous ruling.

The order of the- Appellate Division should be reversed and the motion to strike should be granted.

Chief Judge Conway 'and Judge® Desmond, Dye, Fuld, Froessel 'and Burke concur in Per Curiam opinion; Judge Van Voorhis dissents and vote® to affirm.

Order reversed, with costs in all courts, and appellants’ motion to strike the partial defense (res judicata) contained in paragraph “ 43 ” of the answer herein granted.

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Per Curiam.

Our determination that the action, relief requested, rights and interests affected, and issue®, set forth in the complaint differed from the prior proceedings before the Surrogate of Monroe County precludes the assertion of the defense of res judicata under -any circumstances. (Erbe v. Lincoln Rochester Trust Co., 3 N Y 2d 321.) As we previously held, the complaint states a cause of action in actual fraud. It follows, -therefore-, that the motion to strike paragraph 43 of the answer setting forth the defense as to certain allegations in the complaint should have been granted in accordance with our previous ruling.

The order of the- Appellate Division should be reversed and the motion to strike should be granted.

Chief Judge Conway 'and Judge® Desmond, Dye, Fuld, Froessel 'and Burke concur in Per Curiam opinion; Judge Van Voorhis dissents and vote® to affirm.

Order reversed, with costs in all courts, and appellants’ motion to strike the partial defense (res judicata) contained in paragraph “ 43 ” of the answer herein granted.

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156 N.E.2d 460, 5 N.Y.2d 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erbe-v-lincoln-rochester-trust-co-ny-1959.