
    Josephine Cotrone, Appellant, v. Roberto Iervolino, Respondent.
    First Department,
    April 6, 1945.
    
      
      Avél B. Silverman for appellant.
    
      Ben Mermelstein for respondent.
   Per Curiam.

It does not appear that the issues raised by plaintiff, in this action were determined in the prior litigation in thé Supreme Court, Kings County. In the earlier suit, plaintiff appeared as defendant in an action instituted by her former husband, the present defendant, for a declaratory judgment to determine the ownership of a bank account. She there interposed an answer containing denials, and a counterclaim to the effect that the money on deposit in the bank amounting to $5,000, together with an additional sum of $5,000, ha_d been fraudulently obtained from her by her former husband. (Iervolino v. Iervolino, 266 App. Div. 858.) The judgment in favor of the wife in the prior action declaring her to be the owner of the bank account does not show that the counterclaim was litigated. Such judgment might readily have been recovered by her upon proof admissible under the denials in her answer. (Barber v. Ellingwood, 137 App. Div. 704, 708.) Though the counterclaim was pleaded, she was at liberty to abandon it without forever waiving it. (Honsinger v. Union Carriage & Gear Co., 175 N. Y. 229.)

The burden of proof as to res judicata rests upon the person asserting it. (Jasper v. Rozinski, 228 N. Y. 349, 356; Townsley v. Niagara Life Ins. Co., 218 N. Y. 228, 233; Griffen v. Keese, 187 N. Y. 454, 464.) Upon the papers submitted at Special Term defendant, charged with that' burden, did not establish the defense as a matter of law.

The order and the judgment entered thereon dismissing the complaint on the ground that there is an existing final judgment of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties should be reversed, with costs, and the motion denied, with leave to the defendant to answer within ten days after service of order on payment of said costs.

Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.

Judgment and order unanimously reversed, with costs, and the motion denied, with leave to the defendant to answer within ten days after service of order on payment of said costs.  