265 A.D. 872 | N.Y. App. Div. | 1942
In our opinion the complaint in the prior action and the second and fourth causes of action in the amended complaint in the instant action allege the same cause of action and, therefore, the judgment in the prior action is res judicata as to the second and fourth causes of action pleaded in the amended complaint in the instant action. While it is true that in the instant action plaintiffs seek to recover the proceeds of the policy upon a theory or ground entirely different from that advanced in the former action, the controlling fact is that in both actions plaintiffs sought the same relief for the same legal wrong, to wit: defendant’s breach of its obligation to pay the proceeds of the policy. (De Coss v. Turner & Blanchard, Inc., 267 N. Y. 207; Baltimore S. S. Co. v. Phillips, 274 U. S. 316.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.