Judgment, in so far as it dismissed plaintiff’s complaint, unanimously reversed upon the law and new trial granted, so far as the complaint is concerned, with thirty dollars costs to appellant to abide the event. Appeal from order directing dismissal of complaint is dismissed. There is no such order — merely the decision of the court.
It was error for the trial court to hold that the judgment in the prior action, even had it been in evidence, was a bar to the present action. A judgment is conclusive not only of the issues actually litigated in an action but also of any matter necessarily comprehended and involved therein, although not litigated. (Pray v. Hegeman, 98 N. Y. 351; Griffin v. Long Island R. R. Co., 102 id. 449.) But that rule does not bar a party from suing later in a separate action upon a claim which he could have interposed as a counterclaim in the prior action, but did not do so, where the counterclaim was not necessarily involved in the determination of the plaintiff’s claim, A party may interpose a counterclaim or withhold it and make it the subject of a separate action at his election. If he fails to interpose it as a counterclaim he is not barred from thereafter
Present, Cropsey, MacCrate and Lewis, JJ.