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261 New York 159.

CRANE, J. On February 7, 1929, at the corner of Seventeenth avenue and Jamaica avenue, in the borough of Queens, New York City, a collision occurred between the automobile owned and operated by John J. Huppmann and a bus of the Woodside Astoria Transportation Co., Inc. Huppmann sued the transportation company for damages and proved that the collision was due solely to the negligence of its driver to which no carelessness on his part contributed. He recovered a judgment of $2,153.75 against the company.

Later, a passenger in the bus, Mary Neenan, sued both Huppmann and the Woodside Astoria Transportation Co., Inc., for the damages due to personal injuries received in the collision and, strange as it may seem, recovered a judgment of $1,500 against both defendants. Huppmann sought to introduce the judgment roll in his action against the transportation company, but of course it was not res judicata as to the passenger, Mary Neenan, as she was not a party to that action. She was free to prove that Huppmann was also negligent. If this were not so a responsible party might by collusion shift the liability upon an irresponsible person who cared little about a judgment against him. A plaintiff may hold all joint tort feasors. There was no error in excluding the judgment roll in the action of Mary Neenan.1 . . .

The judgment in favor of Mary Neenan against Woodside Astoria Transportation Co., Inc., should be affirmed, with costs.


Judgment accordingly.2

1 The remainder of the opinion, dealing with a claim of the Woodside Astoria Transportation Company against Huppmann for contribution under N. Y. C. P. A. § 211-a, is omitted.

2 See 1 Freeman, Judgments (5th ed. 1925) §§ 407–409.

Suppose that defendant is convicted of an assault and battery on plaintiff. In a later civil.suit by plaintiff to recover damages for the same assault and battery, is the judgment of conviction res judicata against defendant? See Eagle, Star & B. D. Ins. Co. v. Heller, 149 Va. 82 (1927). Is it admissible in evidence? Compare Doyle v. Gore, 15 Mont. 212 (1895), with Schindler v. Royal Ins. Co., 258 N. Y. 310 (1932). See Note, 41 Harv. L. Rev. 241 (1927). Suppose defendant had been acquitted?




275 New York 14.

FINCH, J. An automobile, owned by the defendant-appellant, Mary C. Emery, and operated by her son, William E. Emery, collided with a motor truck owned by the plaintiff Good Health Dairy Products Corporation of Rochester, N. Y., and operated by the plaintiff Edward Vandeville. Both vehicles were damaged and both drivers were injured as a result of the accident. William E. Emery instituted suit in the City Court of Rochester against Vandeville and the Good Health Dairy Products Corporation. Judgments were returned in his favor against both, which judgments have been affirmed by the County Court and the Appellate Division. After the actions had been commenced by William E. Emery, but before they were tried, the plaintiffs in this action (who were the defendants in the action brought by William E. Emery) instituted this suit in the Supreme Court against William E. Emery and Mary C. Emery to recover for personal injuries and property damage to the motor truck. Mary C. Emery entered counterclaims for the property damage to her automobile. After the City Court judgments in favor of William E. Emery had been affirmed, William E. Emery and Mary C. Emery made motions to amend their answers in the Supreme Court action, to plead as an additional defense the judgments in the City Court actions as res judicata. The order was granted as to William E. Emery but denied as to the appellant Mary C. Emery. She appealed to the Appellate Division, which affirmed on the law and not in the exercise of discretion, and certified the following question to this court: "On the record was the order of the Appellate Division properly granted as matter of law?"

Liability on the part of Mary C. Emery, as owner of the automobile, is derivative and is akin to that imposed on a master for the negligent acts of his servant under the doctrine of respondeat superior. (Vehicle and Traffic Law [Cons. Laws, ch. 71],1 § 59.) 2 Section 59 creates a liability, but, although not enlarging the rights of an owner, does not attempt to impose liability unless the operation of the automobile has been negligent. Such liability on the part of

1 Square brackets in original report.

2 This section provides in part as follows: "Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner."

the owner or master can arise only if the operator of the automobile is negligent. (Pangburn v. Buick Motor Co., 211 N. Y. 228.) It having been adjudicated in the City Court action that the operator of the automobile owned by Mary C. Emery was not negligent as to the plaintiff Good Health Dairy Products Corporation or the plaintiff Vandeville, that question is foreclosed and the plea of res judicata is available to Mary C. Emery in suits brought against her.

The doctrine of res judicata, as generally stated, is that an existing final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all other actions on the points in issue and adjudicated in the first suit. Despite the frequent statement that the plea is available only to parties to the prior action or their privies, and that the estoppel of the judgment must be mutual, there are a number of cases holding that to this rule there are so-called exceptions. "An apparent exception to this rule of mutuality has been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts, when sued by the same plaintiff. See Portland Gold Mining Co. v. Stratton's Independence, 158 Fed. Rep. 63, where the cases are collected. . . . The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee." Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127, 128.)

Thus it has been held that, where the liability of a principal or master is derivative, a judgment on the merits in favor of the servant or agent from whom the liability is derived, may be set up as a defense by the principal or master, although he was not a party to the earlier action. (Featherston v. President of Newburgh & Cochecton Turnpike Co., 71 Hun, 109; Portland Gold Mining Co. v. Stratton's Independence, Ltd., 158 Fed. Rep. 63. See 1 Freeman on The Law of Judgments [5th ed.],1 § 469. Cf. Castle v. Noyes, 14 N. Y. 329.) Behind the phrase res judicata lies a rule of reason and practical necessity. One who has had his day in court should not be permitted to litigate the question anew. Although normally it is necessary that mutuality of estoppel exist, an exception is at times made where the party against whom the plea is raised was a party to the prior action and “had full opportunity to litigate the issue of its responsibility." (See Liberty Mutual Ins. Co. v. Colon, 260 N. Y. 305, 312.) 2 Under such circumstances the judgment is held to be conclusive upon those who were parties to the action in which the judgment was rendered. Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to

1 Square brackets in original report. 2 See 46 Harv. L. Rev. 858 (1933).

establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues.

Where the issue in the second action differs in any way from that in the earlier action, the plea, of course, is not available.

In the case at bar, however, the plaintiffs have had a full opportunity to litigate the issue of liability. In the actions in which the judgments in favor of William E. Emery were recovered it was essential for him to establish the negligence of the defendants therein. And those defendants, now the plaintiffs in the case at bar, although they had a full opportunity to show their freedom from negligence, were found liable and are bound by the verdict against them. It is true that Mary C. Emery, not being a party to the earlier actions, and not having had a chance to litigate her rights and liabilities, is not bound by the judgments entered therein, but, on the other hand, that is not a valid ground for allowing the plaintiffs to litigate anew the precise questions which were decided against them in a case in which they were parties.

The case of Neenan v. Woodside Astoria Transp. Co. (261 N. Y. 159), relied upon by the plaintiffs, is not in point, since the action in which the attempt to plead res judicata was made was an action by a passenger in the bus against the operator of the automobile which collided with it, whereas the prior suit had been between the bus company and the operator of the automobile. Not only was there no privity between the bus company and its passenger, but the liability of neither was derived from the other, and the first trial afforded no opportunity to litigate the relative rights and liabilities as between the passenger and the owner of the automobile.

In each case the order appealed from should be reversed and the motion granted, with costs in all courts, and the question certified should be answered in the negative.


Orders reversed, etc.1

1 See Restatement, Judgments (1942) §§ 78-111; Note, 57 Harv. L. Rev. 98 (1943); Cox, "Res Adjudicata: Who Entitled to Plead," 9 Va. L. Reg. (N.S.) 241 (1923).

After a collision between a bus of the X company and a truck of the Y company driven by Y's employe A, A sues X for personal injuries due to negligence and X counterclaims for damage to its bus due to A's negligence. Judgment for X on the claim and for A on the counterclaim. Now X sues Y for the damage to its bus. Has Y a defense on the ground of res judicata? See Central N. Y. Coach Lines v. Syracuse Herald Co., 277 N. Y. 110 (1938).






175 Massachusetts 71.

PETITION, for a writ of prohibition against the judges of the Court of Registration established by St. 1898, c. 562, entitled "An Act to provide for registering and confirming titles to land," to prohibit them from proceeding further in registering the title to a certain parcel of land and determining the boundaries between it and an adjoining parcel of land belonging to the petitioner.1 ...

HOLMES, C. J. This is a petition for a writ of prohibition against the judges of the Court of Registration established by St. 1898, c. 562,2 and is brought to prevent their proceeding upon an application concerning land in which the petitioner claims an interest. The ground of the petition is that the act establishing the court is unconstitutional. Two reasons are urged against the act, both of which are thought to go to the root of the statute and to make action under it impossible. The first and most important is that the original registration deprives all persons except the registered owner of any interest in the land without due process of law. There is no dispute that the object of the system, expressed in § 38, is that the decree of registration "shall bind the land and quiet the title thereto," and "shall be conclusive upon and against all persons," whether named in the proceedings or not, subject to few and immaterial exceptions. And this being admitted, it is objected that there is no sufficient process against, or notice to, persons having adverse claims, in a proceeding intended to bar their possible rights.

The application for registration is to be in writing and signed and sworn to. It is to contain an accurate description of the land, to set forth clearly other outstanding estates or interests known to the petitioner, to identify the deed by which he obtained title, to state the

1 The remainder of the statement is omitted.

2 As to the Torrens system of land registration, see Note, 42 Harv. L. Rev. 945 (1929). The Massachusetts Court of Registration is now called the Land Court. See Mass. Gen. Laws (Ter. ed. 1932) c. 185.

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