
    FROST et al. v. BANKERS COMMERCIAL CORP.
    United States District Court S. D. New York.
    Jan. 16, 1951.
    Alfred S. Julien, New York City, for plaintiffs.
    Robert I. Rogin, New York City, for defendant.
   WEINFELD, District Judge.

It is unnecessary to pass on the sufficiency of the amended complaint for, even assuming it to state a cause of action, the defendant is entitled to summary judgment dismissing the action. The judgment of the Supreme Court, affirmed by the Appellate Division, in the first action brought by the Republic Chemical Corporation v. Bankers Commercial Corp., 73 N.Y.S.2d 318, affirmed 269 App.Div. 736, 54 N.Y.S.2d 396, determined the claim here in suit adversely to the plaintiff’s contentions. The bills of lading, out of which the claim asserted in this action arises, were then stated to be owned by Republic. The plaintiffs offer no factual proof of when or how these bills of lading or the claim springing from them were acquired by them. Neither the plaintiffs nor Republic submits an affidavit and though the plaintiffs’ attorney here was also the attorney for Republic in the State Court action, his affidavit is also silent on the vital question how the bills of lading owned by Republic at that time have since come into the hands of the plaintiff.

Although a prior motion was made in April 1949, and the present motion papers were served on September 29th, 1950, thus affording more than ample opportunity for submission of affidavits based on facts and personal knowledge, to date none has been submitted. The affidavit of the attorney offered in opposition to the motion is not made on personal knowledge and is insufficient under Rule 56(e) of the Rules of Civil Procedure, 28 U.S.C.A. Person v. U. S., 8 Cir., 112 F.2d 1, certiorari denied, 311 U. S. 672, 61 S.Ct. 35, 85 L.Ed. 432.

In the absence of proof—and the plaintiffs offer none—the Court must on the present record infer that the plaintiffs acquired the bills of lading after the adverse State Court adjudication. If so, they are concluded by it. Nor can the plaintiffs escape the effect of the adverse determination by clothing the claim in different garb. Its essential nature, despite the new grounds and theories advanced to support it, remains unchanged. The wholesome principle of. res judicata is not to be overcome so easily.

The defendant’s motion for summary judgment is accordingly granted.

Settle order on notice.  