(dissenting). We would affirm. The services for which plaintiff seeks recovery were rendered in the years 1959-1961, in connection with an action for separation, alimony and child support. Such action was discontinued because of a reconciliation of the parties. In 1962, the defendant husband moved for summary judgment dismissing plaintiff’s complaint in the subject action, which motion was denied *47and affirmed by this court in June of 1963 (19 A D 2d 697). The matter has long been at issue and is to be called on the next reserve calendar in Trial Term. Defendant’s motion herein was not returnable until June, 1967, and is based on a judgment in favor of the husband rendered in 1964 in a second and independent matrimonial action brought by him.
Laches alone should be sufficient to defeat this motion, not renewed, after a previous denial, until the eve of trial, and based on a 1964 judgment (see Jordan v. Levy, 16 A D 2d 64). Further, in our view, the Weidlich case (276 App. Div. 383) is not controlling. The plaintiff attorney, in the instant case, did not represent the wife in the second matrimonial action wherein the defendant husband was successful, and is not suing for any services in connection with that action. He seeks recovery for services rendered in connection with the wife’s prior separation action, the issues in which were never determined on the merits. Although the findings purporting to support the judgment rendered in the second action may constitute proper evidence bearing on pertinent issues of fact in the subject action (cf. Wood v. Wood, 21 A D 2d 627, 631; Restatement, Judgments, § 111), depending, of course, upon a consideration of the entire record before the court (see Ripley v. Storer, 309 N. Y. 506), such findings do not conclusively bar the subject action. The doctrines of res judicata and collateral estoppel " must not be allowed to operate to deprive a party of an actual opportunity to be heard ” (Commissioners of State Ins. Fund v. Low, 3 N Y 2d 590, 595). Accordingly, we would not dismiss the plaintiff’s complaint out of hand but would afford him an opportunity of a trial on the disputed issues of fact.
Botein, P. J., Stevens and Rabin, JJ., concur in Per Curiam opinion; Eager and McGivern, JJ., dissent in opinion.
Order entered on July 21,1967, reversed, on the law, with $50 costs and disbursements to the appellant, and defendant-appellant’s motion for summary judgment granted, with $10 costs.