Purpora v. Coney Island Dairy Products Corp.

262 A.D. 908 | N.Y. App. Div. | 1941

Plaintiff seeks to recover damages for personal injuries sustained as a result of a collision between defendant’s truck and the truck of Royal Trucking Corporation, the latter being operated by plaintiff. In consolidated actions in the Municipal Court, in one of which this defendant was plaintiff, and said Royal Trucking Corporation and this plaintiff were defendants, and in the other of which said Royal Trucking Corporation was plaintiff and this defendant was defendant, the jury rendered a verdict “ We find both sides negligent,” which thereupon the court stated to be for the defendants in each of the cases. Defendant herein claims that this finding of the jury is a complete defense in this action. If there had been general verdicts for the defendants in each of the Municipal Court actions, the following would be disclosed: (a) In the action brought by this defendant against Royal Trucking Corporation and this plaintiff, it could not be said that there was an adjudication of negligence on the part of this plaintiff; (b) in the action by Royal Trucking Corporation against this defendant, this plaintiff was not a party and, therefore, was not bound by the judgment. (Bisnojf v. Herrmann, 260 App. Div. 663; Elder v. New York & Penn. Motor Express, Inc., 284 N. Y. 350.) Therefore, this plaintiff was not bound by either adjudication. The special and gratuitous verdict of the jury was not warranted by section 459 of the Civil Practice Act and seems to have been placed in proper form by the court, as stated at the time and as indicated by the order denying the motion to set aside the verdict. Order denying plaintiff’s motion to strike out the affirmative defense of res judicata and the order granting defendant’s motion for summary judgment reversed on the law, with one bill of ten dollars costs and disbursements to plaintiff, plaintiff’s motion to strike out the defense of res judicata granted, and defendant’s motion for summary judgment denied, with ten dollars costs to plaintiff. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur. ,