By our affirmance of the Appellate Division in the previous action (Slater v. Gulf, Mobile & Ohio R. R. Co., 304 N. Y. 636, affg. 279 App. Div. 166), we agreed that the letters of May 25, 1945, did not constitute a contract, and that there was no factual basis for the second cause of action either on the theory of fraud or unjust enrichment. Our determination was not based upon any alleged technical defect in pleading, nor upon a failure to make a formal demand for relief impossible to grant in any event, but rather upon the merits, which were fully argued before us. There being no factual basis for unjust enrichment, there is no basis for restitution (Milman v. Denniston, 271 App. Div. 988, motion for leave to appeal denied 297 N. Y. 1038; Schank v. Schuchman, 212 N. Y. 352; Stone v. White, 301 U. S. 532; Atlantic Coast Line v. Florida, 295 U. S. 301, 309; Restatement, Restitution, § 1).
In our opinion, the complaint at bar presents no new issues, and, as the parties to this action were parties to Action No. 1, the complaint cannot survive the motion to dismiss upon the ground that the prior judgment is res judicata (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Werring v. Selig, 241 App. Div. 67, affd. 266 N. Y. 566).
The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the complaint dismissed. The question certified should be answered in the affirmative.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Yooehis, JJ., concur.
Order reversed, etc.