Memorandum. A prior court’s dismissal of the negligence claim on the merits, in this instance by a Federal court which under Federal procedure dismissed on the merits, precludes the plaintiff from litigating the unseaworthiness claim in
Page 760
another court (cf. De Coss v Turner & Blanchard, 267 NY 207; see Restatement, Judgments, § 63, Comment b, Illustration 4; §§ 64-65).
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
Order affirmed, with costs, in a memorandum.