Stott v. Hotaling , 45 N.Y.S.2d 787 ( 1944 )

Defendants have appealed from an order of the Albany Special Term denying their motion for dismissal of the complaint under subdivision 5 of rule 107 of the Rules of Civil Practice. This action was brought for the purpose of having it adjudged that the plaintiff is the owner of certain parcels of real estate in the city of Albany and requiring defendants to account for rents received by them in connection with such real estate. The contention of defendants is that the issue as to whether or not plaintiff is a distributee of Martha English, deceased, was litigated and determined adversely to plaintiff in the Surrogate’s Court of Albany County. There was no adjudication on the merits in the Surrogate’s Court and the record shows that plaintiff’s proceeding in that court was withdrawn. Order affirmed, with ten dollars costs and disbursements. Hill, P. J., Bliss, Heffernan and Sehenck, JJ., concur.