Pacific Southwest Trust and Savings Bank, on Its Own Behalf, and on Behalf of All Other Parties Similarly Situated, Who May Come in and Contribute to the Expenses of This Action, Respondent, v. Mark Hyman, Appellant, Impleaded with Walter Jerome Green and Others, Defendants

Pacific Southwest Trust and Savings Bank, on Its Own Behalf, and on Behalf of All Other Parties Similarly Situated, Who May Come in and Contribute to the Expenses of This Action, Respondent, v. Mark Hyman, Appellant, Impleaded with Walter Jerome Green and Others, Defendants. First Department, June 24, 1927. Judgments — res judicata — dismissal of equity action on merits not bar to action at law —■ findings in equity action binding in action at law. The dismissal of an equity action on the merits is not a bar to an action at law based upon the same facts. However, in an action at law the parties are entitled to the benefit of findings of fact made in the equity action. Mebbell, J., dissents. Appeal by the defendant, Mark Hyman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1927, granting plaintiff’s motion to resettle a decision and judgment. Allan R. Campbell of counsel [Herbert Plaut with him on the brief; Rabenold & Scribner, attorneys], for the appellant. Louis Boehm of counsel [Samuel Zeiger, attorney], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. The dismissal on the merits of an action in equity is no bar to an action at law. The cause of action at law is necessarily a different one. But in such new action the parties are entitled to the benefit of the findings of fact made in the equity action. If the modifying clause was intended merely to assure the plaintiff its right to sue at law, it was unnecessary. If it was intended beyond this to deprive the defendant of the benefit of the findings of fact which had been made in his favor, it was improper. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.; Merrell, J„, dissents. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.