Judges Burke, Scileppi and Jasen concur with Judge Breitel; Judge Bergan dissents and votes to affirm in a separate opinion in which Chief Judge Fuld and Judge Gibson concur.
This appeal involves an action by a wife to recover, inter alia, one half of some $24,800 withdrawn by her husband, defendant-respondent, from a brokerage account held at that time in the names of both spouses. Prior to the instant action, and some two weeks after the withdrawal in question, the wife had brought an action for separation against her husband. The dispositive issue on this appeal is the res judicata effect of the judgment previously rendered in the separation action.
The merits of the present action must be determined by the nature of the ownership interest in the brokerage account. If the wife had only a bare right of survivorship she is entitled to no relief. If, on the other hand, she was an owner, either as a true joint tenant or as a tenant in common with her husband, then she is entitled, and as to this the parties seem to agree, to one half of the sum withdrawn on February 12, 1965 by the husband.
If the ownership of the brokerage account was determined in the action for separation, then the prior judgment has the effect of res judicata and determines the basic issue for this action. In the matrimonial action the wife sought no relief with respect to property, but the husband interposed counterclaims in which, among other things, he alleged that his wife had no interest in the brokerage account and sought a decree that he was the sole owner.
After trial in the prior action the wife was awarded a separation, and the husband's counterclaims were dismissed on the merits. The trial court, in granting a separation and dismissing the counterclaims, wrote a memorandum in which it unambiguously concluded that the disputed personal assets, including the brokerage account, were owned by both spouses. Thereafter there was an appeal to the Appellate Division which affirmed the judgment of separation and, presumably, the recited dismissal of the counterclaims (27 A.D.2d 750). In any event, subsequent to the appeal a motion was made to resettle the judgment, which until then had only recited the dismissal, to dismiss the counterclaims expressly. From this resettlement there was no further appeal.
In this action the wife moved for summary judgment upon the ground of res judicata based on the judgment in the separation action. The motion was denied at Special Term and the Appellate Division affirmed (26 A.D.2d 993). No further appeal was taken, but upon the trial she pressed her res judicata argument. The trial court concluded that plaintiff was not entitled to urge res judicata because the question had been resolved by the denial of summary judgment, affirmed by the Appellate Division.*fn*
Although the law of the case must have frustrated her effort, the wife had urged res judicata on the trial. It is uncontradicted by her, however, that the issue was not raised again in the Appellate Division. She raises it again, however, in this court. Defendant husband argues that by the wife's failure to raise the contention in the Appellate Division, she has abandoned or waived her right to rely on it.
The doctrine of res judicata is available to plaintiff wife in this court and, therefore, must determine the issues.
First, in the classic sense of the doctrine of law of the case, the issue was not available to plaintiff wife either in the trial court or before the Appellate Division on the subsequent appeal from the trial judgment in this action. The affirmed prior denial of summary judgment on which this pure question of law was raised was determinative for all courts but this one. (See Rager v. McCloskey, 305 N. Y. 75, 78; Hornstein v. Podwitz, 254 N. Y. 443, 450; Walker v. Gerli, 257 App. Div. 249, 251-252; 5B C. J. S., Appeal & Error, §§ 1821, 1829, 1839, pp. 181-190, 204-208.) It would have been both bootless and inappropriate for the wife to reargue the point in the Appellate Division. If the strong doctrine of the law of the case was not to be violated, the Appellate Division could not properly pass upon the question anew. Hence, for this reason alone, there has been no abandonment or waiver which would or should bar the wife from raising res judicata in this court.
Secondly, apart from the law of the case, it is well established that questions raised in the trial court or in the record, even if not argued in the intermediate appellate court, are nevertheless available in the Court of Appeals. Thus, it has been stated in the definitive treatise on the jurisdiction and practice of this court, that "If the question is properly presented in the court of first instance, it is available in the Court of Appeals even though not suggested in the Appellate Division" (Cohen and Karger, Powers of the New York Court of Appeals, n. 1, at p. 624).
The rule was best stated in Cohn v. Goldman (76 N. Y. 284, 287): "It is, indeed, a rule, that questions not raised at the trial court, which might have been obviated by the action of the court then, or by that of the other party, will not be heard on appeal as ground of error. And it is not uncommon for courts to pass over in silence exceptions not brought to their notice by counsel. But we know of no rule which prevents counsel from urging, in an appellate court, a point distinctly made and preserved at the trial court, because it has not been made to an intermediate appellate court. If the exception presents clear error, and one of materiality, which may have influenced the fate of the trial, an appellant may be indulged in bringing it to notice on his final appeal."
More recently, in discussing the effect of waiver in the Appellate Division upon a party's right to present an argument on appeal to the Court of Appeals, this court, in Ross v. Caywood (162 N. Y. 259, 264), said: "In thus discussing the question of waiver upon the theory of the respondent, we do not wish to be understood as holding by implication that a waiver may be implied from the failure to raise the point upon the intermediate appeal."
The rule has not been qualified. True, there are cases like Matter of Lefkowitz v. Cohen (286 N. Y. 499); Persky v. Bank of Amer. Nat. Assn. (261 N. Y. 212); Wright v. Wright (226 N. Y. 578); Martin v. Home Bank (160 N. Y. 190), which reveal a less than absolute reluctance to consider new questions. But each involved new questions of law raised for the first time in this court and which had never been raised in the trial court or in the Appellate Division (Matter of Lefkowitz v. Cohen, supra, at p. 502; Persky v. Bank of Amer. Nat. Assn., supra, at p. 217; Wright v. Wright, supra, at p. 578; ...