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  5. 48 N.Y.2d 696 (1979)
 

McLEARN v. COWEN & CO.

48 N.Y.2d 696 (1979)

Mildred A. McLearn, Appellant, v. Cowen & Co. et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Respondent.

Court of Appeals of the State of New York.

Decided October 16, 1979.

Attorney(s) appearing for the Case

James D. Burchetta and Robert C. Agee for appellant.

Roger J. Hawke and Thomas J. Mullaney for respondent.

Judges JASEN, JONES, WACHTLER and FUCHSBERG concur in memorandum; Chief Judge COOKE dissents and votes to reverse in an opinion in which Judge GABRIELLI concurs; Judge MEYER dissents and votes to reverse in a separate dissenting opinion.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

As that court held, plaintiff-appellant's present claim is precluded by the determination adverse to her in the Federal court action. If one accepts the contention now advanced by her that recovery on the theory of breach of common-law fiduciary duties was not pleaded in the Federal action, it could have been. On the other hand, if one...

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