Ouriel v. John Petrossi Co.

Judgment of County Court reversed on the law and judgment of City Court of Rochester affirmed, with costs in this court and in the County Court. Memorandum: If defendants-respondents were aggrieved by the fact that the judgment rendered in a former action between the parties specified that it was “ not on the merits,” they should have moved to amend the judgment under section 512-c of the Charter of the City of Rochester, or should have taken an appeal therefrom. Having failed to do so, and in the absence of fraud in procuring the former judgment, its form or validity cannot be made the object of collateral attack in this later action. (Hollenbeck v. Ætna Casualty & Surety Co., 215 App. Div. 609; affd., 243 N. Y. 540.) In any event, the record before us, which does not include the evidence taken upon the former trial and accordingly leaves us uninformed as to the precise issues there adjudicated, does not permit us to determine the legal basis for the former judgment. All concur. (The judgment dismissed the complaint in an action to recover damages for negligent injury of a monument.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.