Weissman v. Friend , 285 N.Y.S.2d 906 ( 1967 )

—- Reynolds, J.

Appeal from an order of the Supreme Court, Sullivan County, denying appellants’ motion to dismiss the respondent’s complaint. Appellants assert that the present action is barred by res judicata (CPLR 3211, subd, [a], par. 5). It is clear, however, as -Special Term properly noted that the present action for reformation of certain shareholders’ agreements, certificates of incorporations and by-laws on the grounds of mutual mistake, mistake of the scrivener or mistake of the respondent and fraud of the appellants is a different cause of action from that previously asserted in which respondent sought to assert certain rights pursuant to such documents as then constituted. Accordingly, the prior judgment is not a bar to the present action (CPLR 3002, subd. [d]; e.g., Smith v. Kirkpatrick, 305 N. Y. 66; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3002.09; vol. 5, par. 5011.14). Order affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.