Opinion
June 19, 1961
In a consolidated action and summary proceeding involving the title and the right to the possession of certain real property, the defendant-petitioner appeals from an order of the Supreme Court, Westchester County, dated January 16, 1961, which denied his motion for summary judgment. The Special Term held that the final order and determination in a prior summary proceeding were neither res judicata nor operated as a collateral estoppel preventing the respondent Charles Lutz from asserting title by adverse possession; that the weight and probative value of statements made by him in earlier litigation were matters for consideration by the trier of the facts; and that the character of his use of the premises and the hostility and the adversity of his possession were questions which should not be decided on affidavits. Order affirmed, with $10 costs and disbursements. No opinion. Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.