Order affirmed, without costs. Eejecting the contention made by plaintiff as cross-appellant we hold that the judgment below would not be res judicata against defendant in a separate suit to recover for alleged fraud and that the Appellate Division, therefore, acted within its powers in giving defendant permission to bring an independent action based on said alleged fraud.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke, Scileppi and Bergan.