
    Anna M. Trojcak, as Administratrix of the Estate of George Trojcak, Deceased, Appellant, et al., Plaintiff, v. James Wrynn, Respondent
   In a negligence action to recover damages for personal injuries, plaintiff, as administratrix of the estate of her deceased husband, appeals from a judgment of the Supreme Court, Queens County, entered June 26, 1973, in favor of defendant against plaintiff as such administratrix, on defendant’s counterclaim, upon a jury verdict on the issue of liability and the trial court’s direction of a verdict of $5,000 on the issue of damages. Judgment reversed, on the law, with costs, and counterclaim dismissed. Plaintiff was a passenger in an automobile owned and operated by her husband, which collided with a ear owned and operated by defendant. Plaintiff was injured and she and her husband sued defendant in negligence for damages for her injuries and for the husband’s loss of her services, respectively. Defendant counterclaimed against the husband for apportionment of any damages which might be recovered against him, under Dole v. Dow Chem. Co. (30 N Y 2d 143). When the case was reached for trial, defendant settled the plaintiff wife’s action against him for $5,000 and the plaintiff husband’s action against him was withdrawn. Defendant, however, reserved his rights against the husband under his counterclaim. Thereafter, the counterclaim was tried before a jury, which found that defendant was “not guilty of negligence ”. The parties stipulated that $5,000 represented the fair and reasonable compensation for the plaintiff wife’s injuries. The Trial Justice thereupon directed a verdict in defendant’s favor in the sum of $5,000 (the amount of the voluntary settlement) against the plaintiff’s husband’s estate, the husband having died before the trial. In our opinion, the Trial Justice erred in directing a verdict of $5,000 in favor of defendant against plaintiff’s husband’s estate. The rule is well settled in this State that a party who voluntarily settles a lawsuit, i.e., to pay an agreed amount of money, without waiting for judgment, assumes the risk of being able to prove that he was legally obligated to make such payment, when- he either seeks indemnity from the party ultimately determined to be liable, or apportionment of damages under the holding of Dole (supra) (Codling v. Paglia, 38 A D 2d 154, 161-162, affd. 32 N Y 2d 330; Rome Cable Corp. v. Tanney, 21 A D 2d 342; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214). In the ease at bar the jury found defendant free of any negligence. Consequently, the payment made by him in settlement of plaintiff’s suit was one that he was not legally obligated to make. Therefore, he was a pure volunteer as to that payment and cannot recover 'it (Codling, supra; Colonial Motor Coach Corp. v. New York Cent. R. R. Co., 131 Misc. 891, 901). Gulotta, P. J., Martuseello, Shapiro, Christ and Benjamin, JJ., concur.  