
    TIMPANO v. DAVID STEVENSON BREWING CO.
    (Supreme Court, Appellate Division, Second Department.
    December 5, 1907.)
    Judgment—Matters Concluded.
    Where plaintiff, in a prior action against Mm by defendant, set up as a counterclaim the same claim on which his suit was brought, and the matter was there litigated to a conclusion, he was bound by the decree therein entered.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 1251.]
    Appeal from Municipal Court of Brooklyn.
    Action by Michael Timpano against the David Stevenson Brewing Company. Judgment for plaintiff, and defendant appeals. Reversed, and a new trial granted.
    Argued before HIRSCHBERG, P. J., and WOODWARD, MILLER, JENKS, and HOOKER, JJ.
    Thomas J. Earrell, for appellant.
    Charles J. Ryan, for respondent.
   PER CURIAM.

The claim upon which the judgment appealed from was' rendered was clearly litigated between the parties in a prior action for the foreclosure of a mortgage in the' Supreme Court, in which suit the plaintiff herein was defendant. In his answer in that case, he set up as a counterclaim the same claim upon which the present suit was brought, and the matter was there litigated to a conclusion. The plaintiff herein is bound by that decree.

It follows that the judgment must be reversed, and a new trial, granted; costs to abide the event.

WOODWARD, JENKS, HOOKER, and MILLER, JJ., concur.. HIRSCHBERG, P. J., not voting.  