Opinion
Argued March 9, 1965
Decided April 15, 1965
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ARTHUR G. KLEIN, J.
Milton Mound and Henry A. Greenburg for appellant-respondent.
Arthur M. Michaelson, Stanley L. Sklar and Arthur H. Miller for respondent-appellant.
Order affirmed, without costs. Rejecting the contention made by plaintiff as cross-appellant we hold that the judgment below would not be res judicata against defendant in a separate suit to recover for alleged fraud and that the Appellate Division, therefore, acted within its powers in giving defendant permission to bring an independent action based on said alleged fraud.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.