Kellner v. Kener — 209 A.D. 844

Majority

p. 844

Fourth Department,

May, 1924.

John S. Kellner, Appellant, v. Edward Kener, Jr., Respondent, Impleaded with Others.

Headnote

Contracts — validity litigated- in former action — motion to dismiss complaint — res judicata.

Appeal from an order of the Supreme Court, made at the Erie Special Term and entered in the Erie county clerk’s office on January 15, 1924, dismissing the complaint as to defendant Kener, .and also from the judgment entered pursuant to said order.

This court in Kellner v. Kener ( 190 App. Div. 927 ) held the contract set forth in the complaint invalid. The judgment of this court was affirmed by the Court of Appeals ( 234 N. Y. 521 ). In the orderly administration of justice we are constrained to hold the same contract invalid here. Consequently the complaint fails to state facts sufficient to constitute a cause of action. The judgment and order should be affirmed, with costs. All concur; Hubbs, P. J., not sitting. Judgment and order affirmed, with costs.

Cases cited

Kellner v. Kener 234 N. Y. 521 N.Y. 1922-07-12 p. 844