Central New York Coach Lines, Inc. v. Syracuse Herald Co. , 291 N.Y.S. 247 ( 1936 )

Appeal from an order of the Supreme Court, entered in Madison county clerk’s office April 27, 1936, denying defendant’s motion to dismiss the complaint made on the ground that in an earlier action it had been determined that defendant’s employee and agent, for whose negligence a recovery herein is sought, was not negligent. The administrator of Grady, defendant’s employee, heretofore brought an action against this plaintiff to recover for decedent’s death alleged to have been occasioned by this plaintiff’s negligence. This plaintiff in that action pleaded, inter alia, that Grady was negligent, and sought to recover against his representative for this plaintiff’s [the then defendant’s] property loss. Evidence on this issue was received and it was submitted to the jury. The verdict was no cause of action, and thus adverse to the defendant’s [this plaintiff’s] counterclaim. The judgment there is res judicata. (Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 128; Wolf v. Kenyon, 242 App. Div. 116; U. S. Fire Ins. Co. v. Adirondack P. & L. Corp., 206 id. 584.) Order reversed, on the law and facts, with ten dollars costs and disbursements, and motion to dismiss complaint granted, with ten dollars costs. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.