
    Frederick Cowan & Co., Inc., Respondent, v National Bank of North America, Appellant.
   —Appeal by defendant from an order of the Supreme Court, Nassau County, dated January 19, 1977, which denied its motion to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed. The issues raised in this action arise out of the same facts which formed the basis for two earlier lawsuits commenced by this plaintiff against this defendant. Both of the earlier actions were dismissed on defendant’s motion for summary judgment. Though the theory of the instant lawsuit differs from the earlier ones, the issues herein asserted could, and should, have been asserted therein. Accordingly, plaintiff is barred from maintaining this action by operation of the doctrine of res judicata (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 307; Eidelberg v Zellermayer, 5 AD2d 658, 662-663, affd 6 NY2d 815; see, also, Matter of Reilly v Reid, 45 NY2d 24). Mollen, P. J., Latham, Suozzi, Gulotta and Cohalan, JJ., concur.  