I dissent and vote to affirm the order appealed from on the ground that there is an existing final judgment of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties and upon the opinion of Crapser, J. in the case of Boston & Maine Railroad v. Delaware & Hudson Co. (242 App. Div. —), decided at this term of court.
Judgment and order reversed on the law, with costs, and motion for judgment on the pleadings is denied, with ten dollars costs, with leave to respondent to plead within twenty days after the entry and service of a copy of the order to be entered hereon.