Slater v. American Mineral Spirits Co.

I believe it is unfair and violative of the spirit of Dole v. Dow Chem. Co. (30 N Y 2d 143) to deny the defendants an opportunity to assert their claims for apportionment of damages. Accordingly, I would reverse the orders of the Appellate Division and reinstate the third-party complaints.

Preliminarily, it should be observed that in order to invoke the doctrine of res judicata, there must be a final judgment on the merits. (See Bannon v. Bannon, 270 N. Y. 484, 489.) Where there is no judgment upon which to predicate res judicata, as here, but merely an order entered on a motion to dismiss for…