In re the Estate of McCredy 271 A.D.2d 911

The administratrix of the estate of Horace McCredy has appealed from an order of the Surrogate’s Court of Otsego County granting the application of the petitioner to strike from her answer the defense of res judicata and denying her cross motion to dismiss the petition. Merton L. McCredy presented a petition to the surrogate alleging that he is the owner of $7,426.98 credited in two passbooks on deposit in the First National Bank of Richfield Springs, New York. Petitioner claims that on July 29, 1944, decedent made a gift to him of these moneys. He also alleges that on the same date Horace McCredy made a gift to him of $3,131.23 then oh deposit in the West Winfield National Bank represented by a passbook issued by that bank. Petitioner alleges that the administratrix brought an action in the Supreme Court of Herkimer County against the West Winfield National Bank to which he was *912made a party to recover that amount and that the action resulted in a judgment in favor of the administratrix. In her affidavit and on the answer appellant claims that the Supreme Court action in Herkimer County is res judicata on the issues involved in this proceeding and hence that the defense was improperly stricken out. She also contends that her cross motion to dismiss the petition should have been granted. The judgment in the Supreme Court action is not res judicata (Reynolds v. Aetna Life Ins. Co., 160 N. Y. 635; Collins v. Hydorn, 135 N. Y. 320; Rudd v. Cornell, 171 N. Y. 114). Appellant’s second contention will have to be determined by a trial (Matter of Green, 247 App. Div. 540, and cases there cited; Doty v. Willson, 47 N. Y. 580). Order affirmed, with $25 costs and disbursements. All concur.