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ERBE v. LINCOLN ROCHESTER TRUST CO.

5 N.Y.2d 886 (1959)

Gustav Erbe, Jr., Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Appellants, v. Lincoln Rochester Trust Company, Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Respondent.

Court of Appeals of the State of New York.

Decided January 8, 1959.

Attorney(s) appearing for the Case

Matthew J. Shevlin and Harold G. Hutchens for appellants.

William H. Morris and Leonard S. Zartman for Lincoln Rochester Trust Company, respondent.

Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL and BURKE concur in Per Curiam opinion; Judge VAN VOORHIS dissents and votes to affirm.

Per Curiam.

Our determination that the action, relief requested, rights and interests affected, and issues set forth in the complaint differed from the prior proceedings before the Surrogate of Monroe County precludes the assertion of the defense of res judicata under any circumstances. (Erbe v. Lincoln Rochester Trust Co., 3 N.Y.2d 321.) As we previously held, the complaint...

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