The plaintiff had the right to serve an amended complaint. However, the judgment of the New Jersey court dismissing the complaint of the plaintiff in that State is res judicata and binding upon the plaintiff in the New York action insofar, at least, as it concerns the defendant New York Central Railroad. The designation of the defendant in the New Jersey action “New York Central System, a corporation”, was clearly an immaterial misdescription. What was intended and what in fact was actually done was to sue the only employer of the defendant, the New York Central Railroad Company, in both actions. The summary judgment entered in New Jersey, based on a stipulation as to the facts entered into between the authorized attorneys for the parties, was a final determination with respect to the issues there litigated. If the plaintiff seeks to be relieved of his stipulation, he should apply to the New Jersey courts. He cannot relitigate here the issues there decided.
If the plaintiff is so advised, he may continue his present action against the defendant “ John Doe, true name unknown, party intended being the owner of the lighter ‘ NYANDO ’ ” and the action may be severed accordingly.
Order appealed from, insofar as it denied the motion to dismiss the amended complaint on the ground of res judicata, should be reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss granted. Settle order.
Peek, P. J., Glennon, Cohn, Callahan and Shientag, JJ., concur.
Order, insofar as it denied the motion to dismiss the amended complaint on the ground of res judicata, unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss granted. Settle order on notice.