
    First Department,
    June, 1942.
    (June 5, 1942.)
    2018 Seventh Ave., Inc., Respondent, v. Nach-Haus Leasing Corp., Appellant.
   Judgment and order affirmed, with costs. No opinion.

Present — Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ.; Townley and Cohn, JJ., dissent and vote to reverse the judgment, and the order in so far as it grants plaintiff’s motion for summary judgment and to deny said motion; dissenting opinion by Cohn, J.

Cohn, J.

(dissenting). The decision in the rescission suit upon the basis of which respondent’s motion for summary judgment was granted, is in apparent conflict with other decisions of courts c£ competent jurisdiction which tend to support appellant’s claim of invalidity for fraud of the chattel mortgage and the promissory notes given as consideration for the lease. Where, as here, there have been two former actions in which the claim or demand, fact or matter sought to be relitigated has been decided contrarily, the rule, that it setteth the matter at large,” has been applied in this State, and in such case both parties may assert their claims anew. (Shaw v. Broadbent, 129 N. Y. 114, 125. See, also, 34 C. J. 749, § 1159.) Whether respondent had knowledge of the alleged fraud at the time of the assignment to it of the chattel mortgage and the notes, is an issue of fact. In this action to foreclose the lien of the chattel mortgage, summary judgment should not have been granted as there are issues which should be tried in the usual manner of a trial.

The judgment, and the order in so far as it grants plaintiff’s motion for summary judgment, should be reversed and plaintiff’s motion for summary judgment denied.

Townley, J., concurs.  