
    Malcom Samoorian, by His Guardian ad Litem, Arasee Samoorian, Respondent, v. Hertz Corporation, Respondent, and Osgan Kechian, Appellant.
   Plaintiff’s reliance on the doctrine of res judicata is invalid. The general rule is that a judgment does not bind persons who are not parties to the action (Restatement, Judgments, § 93; cf. id. §§ 82, 83, especially, Illustration 1, p. 387). Since no affidavit was made by plaintiff or by any other witness to the accident defendant was not obligated to present bis version of the aeeident or otherwise to exculpate himself. Consequently, the motion may not be granted on the ground of the lack of explanation of the prima facie inconsistent statements contained in the motor vehicle report as compared with defendant’s affidavit on the prior motion to open a default. Concur — Botein, P. J., Breitel, Valente and Eager, JJ.; McNally, J., dissents and votes to affirm,  