285 A.D. 994 | N.Y. App. Div. | 1955
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: As the necessaries allegedly supplied defendant’s wife and child by the plaintiff were furnished, and plaintiff’s claim therefor was instituted, prior to the entry of the decree in the separation action, the judgment denying defendant’s wife a decree of separation is not conclusive upon the third party as to the issue of the legal justification of the wife’s separation from her husband. To so extend the doctrine of res judicata would be to deny the reason and justice upon which the doctrine rests. (Sehuykill Fuel Gorp. v. Nieberg Realty Gorp., 250 N. Y. 304; Elder v. New York é Pennsylvania Motor Express, 284 N. Y. 350.) Nor do the facts in the present case bring it within the exception to the rule of mutuality of estoppel as a foundation of res judicata. (Good Health Hairy Prods. Gorp. v. Emery, 275 N. Y. 14.) All concur. (Appeal from judgment of Onondaga Trial Term for defendant in an action by the mother of defendant’s wife to recover for maintenance of said wife.) Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ.
