
    American Surety Company of New York, Appellant, v. Jeanette Rosenbaum, as Executrix of Samuel Rosenbaum, Deceased, Respondent.
   Order unanimously affirmed, with $25 costs and disbursements. Memorandum: The order appealed from properly granted defendant’s motion to dismiss the complaint for declaratory judgment under subdivision 4 of rule 107 and rule 212 of the Rules of 'Civil Practice on the grounds of a prior adjudication determining the same issue and existence of an adequate remedy in a pending proceeding to compel arbitration. The prior adjudication was made in the arbitration proceeding which was opposed by appellant on the same ground alleged in the complaint in the present action. In both cases appellant alleged that respondent had breached the policy provision requiring the insured to immediately forward all suit papers to the insurer. Special Term, in granting the order, stated that the breach alleged had been considered by the court in the prior proceeding to compel arbitration and in any event it could be presented in the pending appeal from the court’s order rendered in that proceeding. Special Term’s determination that appellant should be estopped from again litigating the same issue raised by that proceeding is fortified by events occurring since entry of that order. The order was entered on August 23, 1960. Appellant could have presented the issue to this court in the appeal pending in the proceeding to compel arbitration and it could also have perfected and argued this appeal with the appeal in that proceeding which was not argued until November 29, 1960 and was not decided until January 12, 1961. (12 A D 2d 886.) It did neither. Seventeen months later (May, 1962) the Court of Appeals reversed the order of this court in the proceeding to compel arbitration. (11 N Y 2d 310.) Nearly three years after the order appealed from was made appellant presents the question to us anew. Under the foregoing facts there can be no doubt that appellant should be collaterally estopped. (Appeal from an order of Erie Special Term granting defendant’s motion to dismiss the complaint.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.  