
    Jewett Homes, Inc., et al., Respondents, v. James Ciardiello et al., Appellants.
   In an action to set aside and rescind a conveyance or, in the alternative, to impress a constructive trust, the defendants appeal from an order of the Supreme Court, Richmond County, dated November 17, 1971, which denied their motion to dismiss the complaint on the ground that it is barred by the doctrine of res judicata. Order affirmed, with $10 costs and disbursements. Neither res judicata nor collateral estoppel may be applied since the court in the first action denied the plaintiffs herein the right to raise the claim as a defense to the first action. Further, since we are reversing the judgment in the first action (see Ciardiello v. Pugliese, 39 A D 2d 562) and ordering a new trial, there is no prior judgment on which to find that res judicata applies. In view of the nature of the defense sought to be raised in the first action and the cause of action sued on herein, we are of the view that the two actions should be consolidated for trial. Hopkins, Acting P. J., Martuscello, Christ, Brennan and Benjamin, JJ., concur.  