Brooks v. Horning

Herlihy, J. (concurring in part and dissenting in part).

I concur with the majority in their determination that Special Term properly granted the respondents’ motion to strike the appellant’s defense of the Statute of Limitations and properly denied the appellant’s motion to dismiss the complaint. However, for the reasons set forth hereinafter, I would modify the order of Special Term and grant the appellant permission to amend her answer in Action No. 2 so as to set forth therein the prior judgment as a defense. The majority find that in order for res judicata or estoppel to be applicable,…