Opinion
June, 1928.
Judgment modified by deducting therefrom the sum of $500, the down payment, and by directing that title be closed within thirty days from the entry of the order herein, at which time adjustments are to be made as of that date. As so modified, the judgment is affirmed, without costs. No opinion. Lazansky, P.J., Kapper and Seeger, JJ., concur; Carswell, J., concurs except as to the direction for the $500 deduction; Hagarty, J., dissents and votes to reverse and to dismiss the complaint upon the ground that the prior judgment in the Municipal Court action by plaintiff's husband upon the check given for the down payment, in which action the defense of fraud, the same defense here interposed, was successfully maintained, involving the same issues and privity in interest, is a bar to the maintenance of this action. ( Eissing Chemical Co. v. People's Nat. Bank of Brooklyn, 205 App. Div. 89; affd., 237 N.Y. 532.) Settle order on notice.