Citizen's Bank of White Plains v. Oglesby , 39 N.Y.S.2d 500 ( 1943 )

.The complaint states a cause of action for equitable relief from the effect of a judgment entered in another action in favor of defendant Cole, and as such it does not constitute a collateral attack upon that judgment. Since the purpose of this action is solely to avoid the effect of such judgment, and inasmuch as plaintiff was not a party to the action in which the judgment was obtained, the doctrine of res judicata is not applicable. The record discloses sufficient facts to indicate that the allegations of the complaint sought to be struck out are not sham and that there are issues of fact which must be tried. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.