
    Gustav Erbe, Jr., Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Appellants, v. Lincoln Rochester Trust Company, Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Respondent.
    Argued November 10, 1958;
    decided January 8, 1959.
    
      
      Matthew J. Shevlin and Harold G. Hutchens for appellants.
    
      William H. Morris and Leonard S. Zartman for Lincoln Rochester Trust Company, respondent.
   Per Curiam.

Our determination that the action, relief requested, rights and interests affected, and issue®, set forth in the complaint differed from the prior proceedings before the Surrogate of Monroe County precludes the assertion of the defense of res judicata under -any circumstances. (Erbe v. Lincoln Rochester Trust Co., 3 N Y 2d 321.) As we previously held, the complaint states a cause of action in actual fraud. It follows, -therefore-, that the motion to strike paragraph 43 of the answer setting forth the defense as to certain allegations in the complaint should have been granted in accordance with our previous ruling.

The order of the- Appellate Division should be reversed and the motion to strike should be granted.

Chief Judge Conway 'and Judge® Desmond, Dye, Fuld, Froessel 'and Burke concur in Per Curiam opinion; Judge Van Voorhis dissents and vote® to affirm.

Order reversed, with costs in all courts, and appellants’ motion to strike the partial defense (res judicata) contained in paragraph “ 43 ” of the answer herein granted.  