Opinion
Argued February 21, 1967
Decided April 6, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, NICHOLAS M. PETTE, J.
David Kashman for appellant.
Irving I. Erdheim and Leonard C. Shalleck for respondent.
Order affirmed, with costs, on the authority of Schneider v. Schneider ( 17 N.Y.2d 123). The question of whether the prior judgment in the arbitration confirmation proceeding was conclusive of the issue in the instant simplified procedure action was not properly before the court as defendant had not raised the affirmative defense before appeal.
Concur: Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL.