
    (April 11, 1963
    Robert G. Bishop, Jr., Respondent, v. Robert Downs, Defendant, and Clyde Scroger, Appellant.
   Order insofar as appealed from unanimously reversed, without costs of this appeal to any party, and motion granted, without costs. Memorandum: Defendant- Downs, an absentee owner, sued plaintiff in a prior action and recovered a verdict for his property damage. Plaintiff, in the case at bar, now seeks to recover against the absentee owner and Scroger, the operator of his car. The judgment in the earlier action established that plaintiff was negligent and this issue cannot be litigated a second time. (Peare v. Griggs, 8 N Y 2d 44.) The ultimate issue to be determined, namely the plaintiff’s negligence, has been resolved and bars any possibility of recovery by plaintiff. “ One who has had his day in court should not be permitted to litigate the question anew.” (Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14, 18; also, see, Hinchey v. Sellers, 7 N Y 2d 287.) Special Term dismissed the complaint as to the defendant Downs on the ground of res judicata but denied the motion to dismiss as to the defendant Scroger. As operator of Down’s automobile, Scroger has the right to take advantage of the principle of res judicata as a defense. (See Israel v. Wood Dolson Co., 1 N Y 2d 116; cf. Manard v. Hardware Mut. Cas. Co., 12 A D 2d 29.) (Appeal from part of order of Monroe Special Term denying motion to dismiss the complaint.) Present — Williams, P. J., Bastow, Goldman, Halpern and MeClusky, JJ.  