
    Samuel A. Harkavy, Appellant, v. Michael Ginzburg, Respondent.
    First Department,
    December 7, 1917.
    Judgment — res adjudicata — prior action not involving same issues — erroneous dismissal of complaint.
    The complaint in an action in the Supreme Court to recover money paid to defendant upon his agreement to convey to the plaintiff an interest in real estate should not be dismissed upon the ground that the matter is res adjudicata where the pleadings and opinion in a prior action in the City Court do not disclose what was litigated in the former action and the two actions are not identical in that in the former action the plaintiff did not complain of the failure of the defendant to deliver a deed, but alleged that the defendant had refused to execute a contract to sell lands, with an added cause of action for moneys had and received.
    Appeal by the plaintiff, Samuel A. Harkavy, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of April, 1917, affirming a judgment of the City Court of the City of New York in defendant’s favor, which dismissed the complaint.
    
      Abraham H. Sarasohn, for the appellant.
    
      Nathaniel Cohen, for the respondent.
   Scott, J.:

The plaintiff seeks to recover a sum of money paid to defendant upon the latter’s agreement to convey an undivided interest in certain parcels of real estate.

Without passing upon the merits the trial court dismissed the complaint upon the ground that the matter in controversy was res adjudícala. This ruling was based upon a judgment in a former action between the same parties. The proof respecting that judgment consisted only of the pleadings in an action in the City Court, the judgment therein, and an opinion delivered by the justice who presided at the trial denying a motion for a new trial. Just what was litigated in that action does not appear. A comparison of the complaint in the former action with the complaint in the present action shows that the causes of action sued upon are not identical. In the present action plaintiff seeks relief because defendant has refused to deliver a deed for the property. In the former action plaintiff did not complain that no deed had been delivered, but that defendant had refused to execute a contract to sell the real estate, and there was added a cause of action for moneys had and received. The defendant, therefore, failed to show that the matters litigated and adjudicated upon in the former action were identical with those to be determined in this.

The determination and judgment appealed from must, therefore, be reversed and a new trial granted, with costs in all courts to the appellant to abide the event.

Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.

Determination appealed from and judgment reversed and new trial ordered, with costs in all courts to the appellant to abide event.  