Opinion
March 7, 1945.
Present — Taylor, P.J., Dowling, Harris, McCurn and Larkin, JJ.
Order reversed on the law, without costs of this appeal to either party, and motion granted, without costs. Memorandum: The complaint which was dismissed on motion in the prior action and the complaint in this action are essentially the same; both complaints are based on the common-law obligation of the master, as enlarged by statute, to provide the plaintiff-employee with a safe place to work. This being so, the rule of res judicata applies and the judgment dismissing the complaint without leave to plead over, in the first action, is a bar to the maintenance of this action. ( Joannes Brothers Co. v. Lamborn, 237 N.Y. 207; DeAgostina v. Signal Theatre Corp., 248 App. Div. 913; Teitelbaum v. Mutual Life Ins. Co., 265 App. Div. 872; Bannon v. Bannon, 270 N.Y. 484.) Having reached this conclusion, it is not necessary for us to pass upon the other grounds urged by the defendant on the motion to dismiss the complaint. All concur, except Harris, J., who dissents and votes for affirmance on the ground that the former judgment being based upon a question of jurisdiction is not res judicata. (The order denies defendant's motion to dismiss plaintiff's complaint.)