
    Morris Plan Industrial Bank of New York, Appellant, v. Mattie M. Rives, Respondent.
    Supreme Court, Appellate Term, First Department,
    May 11, 1943.
    
      
      Henry W. Parker and Harrold H. Kissam for appellant.
    
      John B. McDonald for respondent.
   Memorandum Per Curiam.

It is not conclusively shown that the facts here were such as were or could have been litigated in the prior action.

Even though body execution may not issue and discharge in bankruptcy may be speculative, as defendant says, she has not shown that the substance of any of her rights or interests established in the first action will be destroyed or impaired in the prosecution of the second. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.)

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

Hammer, Shientag and Hecht, JJ., concur.  