
    Yonkers Savings Bank, Respondent, v. The Fidelity and Casualty Company of New York, Appellant.
    Second Department,
    May 26, 1916.
    Insurance — insurance against liability for personal injuries caused by operation of elevator — effect of judgment establishing liability of owner—judgment not conclusive on issues not litigated — injury caused by infant under eighteen years of age not in the employ of insured — when insurer not entitled to benefit of exemption clause.
    Where a passenger on an elevator in a leased portion of a building has recovered judgment against the owner for personal injuries received through the negligent operation of the car, the judgment establishes the fact that the defendant in that action was legally liable for the damages in the amount assessed, and was also liable upon the grounds adjudicated in that action.
    But where such action proceeded upon the theory that the accident was caused by the negligence of the person regularly employed as operator, and involved no finding that it was caused by the negligence of an infant under eighteen years of age whom the regular operator was instructing in the use of the elevator, an insurer who issued a policy indemnifying the owner of the building against loss caused by personal injuries, cannot resist payment on the policy under a clause thereof which exempted the insurer from liability for injuries caused by an elevator attendant under eighteen years of age employed by the assured, where the evidence in the action against the insurer shows that the person who caused the injury was not in the employment of the assured.
    Appeal by the defendant, The Fidelity and Casualty Com- " pany of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of October, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of October, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Edward P. Mowton, for the appellant.
    
      John F. Brennan, for the respondent.
   Stapleton, J.:

The defendant assured the plaintiff that it would indemnify it against loss from the actual payment in money of a final judgment fixing a liability imposed by law upon the assured for damages on account of bodily injuries suffered within its building by a person while in or while alighting from its elevator car. Its policy was expressly subject to the following conditions:

“This policy does not cover loss from liability for, or any suit based on, injuries or death, suffered or caused by — (1) any child employed by the Assured contrary to law; (2) any child under fourteen years of age employed by the Assured, in any State in which there is no • law restricting the age of employment in the Assured’s trade or business; (3) any elevator attendant under the age fixed by law for elevator attendants, or any person in or about any elevator while in charge of such an attendant; (1) any elevator attendant under eighteen years of age employed by the Assured in any State in which there is no law restricting the age of elevator attendants, or any person in or about any elevator while in charge of such an attendant.”

A woman was injured while alighting from the elevator. She sued the plaintiff and recovered judgment. Plaintiff paid the judgment and sued the indemnitor for the amount paid. Both parties to this suit moved for a direction of a verdict. Plaintiff’s motion was granted. The defendant excepted. Judgment was entered upon the directed verdict. From it this appeal is taken.

There is in the record evidence tending to prove: The plaintiff owns a four-story building. It occupies the ground floor, to which there is a separate entrance. It leases the other floors. There is another entrance, leading into a hall, from which a stairway and a passenger elevator give access to the upper floors. The lease of the plaintiff to its tenants did not provide for elevator service on Sundays or holidays. Saturday afternoon was the time of the casualty. The elevator attendant regularly employed was off duty after- one o’clock. One of the tenants, Yonkers Security Company, who did business on Saturdays in the afternoon, procured and paid the plaintiff’s assistant janitor, Kautter, a man of full age, to operate the elevator at those times. This arrangement was denied by the tenant, however.

On the afternoon of Saturday, June It, 1911, Kautter, abandoning the elevator for his own purposes for a short time, left one Carter in the car to operate it. . Carter was under eighteen years of age. He had no relation with the plaintiff. He was otherwise employed. He was a friend of Kautter, who was teaching him to run the elevator. Kautter expected that Hill, the operator regularly employed, would soon leave, and he hoped to procure the job for Carter. While Carter was in the elevator, in the. absence of Kautter, a Mrs. Sundberg came to do business with the Yonkers Security Company. She used the elevator. After completing her business she was injured,' through the carelessness of Carter, while alighting from the elevator at the ground floor. The testimony as to Carter’s running the elevator at the time of the casualty came from plaintiff’s janitor, Kautter, and from Carter himself, given on the trial of the tort action, and from Kautter on the trial of this action. The plaintiff’s evidence in the tort action leaves it uncertain whether Kautter or Carter was the operator at the time of the casualty. The injured woman sued the owner and recovered. The defendant, pursuant to the terms of its contract with plaintiff, took complete charge of the original litigation. The judgment roll and a full record of the trial of the tort action were received in evidence upon this trial.

Defendant would now absolve itself from liability under the 4th subdivision of paragraph B of the conditions to which its obligation to the plaintiff is subject, and which reads:

“This policy does not cover loss from liability for, or any suit based on, injuries or death, suffered or caused by * * * any elevator attendant under eighteen years of age employed by the Assured in any State in which there is no law restricting the age of elevator attendants, or any person in or about any elevator while in charge of such an attendant.”

It contends that the verdict in the tort action conclusively imports that the negligence of Carter was the sole cause of the injury; that he was in plaintiff’s employment at the time; that it was established by uncontradicted credible evidence on the trial of this action that Carter- was then under eighteen years of age, and that it is admitted there is no law in this State restricting the age of elevator- attendants.

It is settled law that the judgment recovered by Mrs. Sundberg is proof in this action that the plaintiff here was legally liable to her for damages in the amount assessed and upon the ground adjudicated in that action if a specific ground was adjudicated. (Oceanic S. N. Co. v. Co. T. E., 134 N. Y. 461, 469; Fulton County G. & E. Co. v. Hudson River T. Co., 200 id. 287, 297; Mason-Henry Press v. Ætna Life Ins. Co., 146 App. Div. 181.) Bu,t as we read the pleading, evidence and charge of the court, we cannot agree that.it was adjudicated in that action that the defendant employed Carter. The request to charge made in behalf of the defendant in that action, which, it is now asserted, presented the question of Carter’s employment for decision, did not specifically mention Carter’s name, and this was essential in view of the main charge. The case went to the jury upon the theory of Kautter’s, not Carter’s, negligence. Moreover, the request was formulated upon the unwarranted assumption that the testimony of witnesses, possibly biased, as to the identity of the operator of the elevator at the time of the casualty, constituted proof. The fact upon which the defendant here resists the plaintiff’s claim for indemnity was not litigated there, but is litigated here. There is evidence in the record that Carter was not in plaintiff’s employment at the time of the casualty.

The judgment and order should be affirmed, with costs.

Present — Jenks, P. J., Thomas, Carr, Stapleton and Mills, JJ.

Judgment and order unanimously affirmed, with costs.  