Jurlan Financial Corp. v. Mendelson , 40 A.D.2d 664 ( 1972 )

Order, Supreme Court, New York County, entered on April 13, 1972, granting motion of defendants to dismiss the complaint on the ground of res judicata, unanimously reversed, on the law, and the motion denied, without prejudice to defendants pleading the said defense in their answer. Appellant shall recover of respondents $60 costs and disbursements of this appeal. Defendants claim that the issues in this action have been decided in a turnover proceeding in the Federal court and that all the relief against defendants has already been had. That proceeding resulted in a finding that respondents had appropriated funds of the bankrupt and directed the return of those funds. This action is for the tortious interference with plaintiffs’ rights against the corporation. While the judgment, if paid, might reduce the amount of plaintiffs’ damage, it does not appear, on the facts submitted, to abolish that claim. Accordingly, the complaint would be valid, though the defense could be established as a partial or total defense. Concur ■—■ Markewich, J. P., Nunez, Steuer, Tilzer and Capozzoli, JJ.