Glover v. Egner

256 A.D. 981, 1939 N.Y. App. Div. LEXIS 5762

Opinion

—■ Action in ejectment. Appeal by defendant Murray from an order of the Special Term, Suffolk county, denying his motion to dismiss the second cause of action on the ground that this action is barred by the judgment entered in a prior action. Order reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. After the close of plaintiffs’ evidence in the former action defendant’s motion to dismiss the complaint was granted on the ground of failure of proof. The dismissal bars a new action. (Hollenbeck v. /Etna Casualty & Surety Co., 215 App. Div. 609; affd., 243 N. Y. 540; Ziegler v. International Railway Co., 232 App. Div. 43; Cabang v. United States Shipping Bd. Merchant Fleet Corp., 227 id. 751. See, also, Kagan v. Avallone, 243 id. 437, at pp. 441, 442; Civ. Prac. Act, § 482.) Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.