Order affirmed, without costs.
The prior determination in proceedings under article 78 of the Civil Practice Act for similar relief (Matter of Delia v. Valentine, 185 Misc. 202) is not res judicata, barring the instant action. The former application was denied because the incompetent had been suspended, and it was held that the right to relief depended upon the outcome of the trial on the pending charges. Accordingly, the motion was denied "without prejudice...
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