Opinion
April 22, 1957
Action to recover under an alleged contract of indemnity for injuries to real property. In a prior action, respondent sued appellant in negligence and nuisance for the same damages. The appeal is from so much of a resettled order as denied a motion, pursuant to subdivision 4 of rule 107 of the Rules of Civil Practice, to dismiss the complaint on the ground of res judicata. Order, insofar as appeal is taken, affirmed, with $10 costs and disbursements ( Colvin v. Smith, 276 App. Div. 9; Robins v. Finestone, 308 N.Y. 543). Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.