I would reverse the orders appealed from insofar as they dismiss plaintiff’s cause of action based upon breach of warranty of seaworthiness and deny dismissal.
In May, 1965 plaintiff commenced an action for damages for her intestate’s wrongful death, in the United States District Court for the Southern District of New York. Plaintiff’s intestate had been employed by respondent as chief officer on one of its ships. Her first cause of action was based upon defendant’s negligence 'and the second upon unseaworthiness of the ship. In May, 1966, an action was commenced in New York Supreme Court based upon the same two theories of recovery against the same defendant. The State action lay dormant.
The case was tried in the Federal court. However, the cause of action based upon unseaworthiness was withdrawn prior to submission of the case to the jury. After reversal by the Second Circuit Court of Appeals the case came on for retrial before the same Judge who had presided at the original trial. Plaintiff refused to proceed to retry the case before the same Judge, claiming bias on the Judge’s part. Her claim was disallowed. Plaintiff’s counsel then stated unequivocally that he would never try the case before the same Judge. Plaintiff concurred in this resolve. Thereupon the court granted defendant’s ’motion to dismiss the complaint on the merits and with prejudice. At that time the only cause of action before the court was the one based upon negligence. The unseaworthiness cause of action had been withdrawn. The Federal court could not dismiss something that was not before it. In March, 1973 defendant moved to dismiss the complaint in the State action upon the ground of res judicata, resulting in the orders appealed from granting such relief.
In our opinion Special Term erred in dismissing the cause based upon unseaworthiness. That cause, which was never litigated in the Federal court, is self-sufficient and independent of the traditional cause based upon negligence (Milin v. United States Lines, 31 N Y 2d 336). A dismissal upon the cause of action for negligence does not preclude recovery under the cause *247for unseaworthiness (Rice v. Atlantic Gulf & Pacific Co., 484 F. 2d 1318).
Murphy, Tilzer and Lane, JJ., concur with Capozzoli, J.; Nunez, J. P,, dissents in an opinion.
Orders, Supreme Court, New York County, entered on December 10, 1973 and March 27, 1974, respectively, affirmed, without costs and without disbursements.