
    Williams v. Hays.
    
      (Supreme Court, General Term, First Department.
    
    May 13, 1892.)
    Res Adjhdicata—Claims in Different Rights.
    The master of a vessel, who was also part owner thereof, recovered judgment against an insurance company on an insurance policy on the vessel, the company unsuccessfully defending on the ground that the vessel was lost through the master’s negligence. The company also paid to the other owners of the vessel their share of the loss under a policy issued to them, and afterwards, claiming to he subrogated to their rights as part owners against the master for the loss of the vessel, assigned its claim to plaintiff, who brought suit against the master for loss of such, co-owners’ interest in the vessel, setting up the same negligence which the company had set up in the master’s action against it. Held, that the judgment in favor of the master against the insurance company was not a bar to plaintiff’s action, since plaintiff did not represent any claim which the insurance company had against the master, but represented the claim which his co-owners had against him.
    Appeal from circuit court, New York county.
    Action by Paul Williams against William Hays. From a judgment entered on a verdict directed for defendant, plaintiff appeals.
    Reversed.
    The complaint alleged, among other things, that the Phenix Insurance Company issued to the firm of Parsons & Loud a policy of insurance on a vessel of which they were part owners; that the vessel was lost on or about the 22d day of March, 1886, through the negligence of defendant; who was the master thereof; that by reason thereof the insurance company, on the 28th of October, 1886, paid the loss to Parsons & Loud under their policy, and thereby became the owner by subrogation of all and every right, claim, demand, and cause of action of the assured against any and all persons for the loss of the vessel, and that the insurance company had assigned all such right, claim, and demand to plaintiff. Defendant, in his answer,, alleged that on the 26th of August, 1886, he commenced an action against the Phenix Insurance Company to recover on a policy of insurance issued by it to him as part owner of the same vessel and on account of the same loss, and recovered judgment against the company on the 15th of December, 1888, and that all the issues-framed by the pleadings in the present action, so far as the loss of the vessel was concerned, were the same as those which were adjudicated in the said action of defendant against the insurance company.
    Argued before Van Brunt, P. J., and O’Brien and Andrews, JJ.
    
      G. A. Black, for appellant. Goodrich, Beady c6 Goodrich, ( W. W. Goodrich, of counsel,) for respondent.
   Van Brunt, P. J.

The plaintiff, as assignee of the Phenix Insurance-Company, sues to recover an amount paid by the insurance company to Parsons & Loud, which, by such payment, became subrogated to their rights, under ,a policy of insurance issued by the said company to them as owners of one sixteenth of a certain brig. The complaint alleges that the defendant was the master of the brig, and that the loss and stranding thereof were caused, by the negligence, misconduct, and improper navigation of the defendant as-master. The defendant, by his supplemental answer, alleged that in an action brought by him against the insurance company to recover the amount of his. insurance upon the three sixteenths of said brig owned by him he recovered judgment against the company, which bad been affirmed by the court of appeals. Hays v. Insurance Co., 28 N. E. Rep. 254, mem.

The single question presented is whether the plaintiff is estopped by the-judgment in the case of the defendant against the Phenix Insurance Company, above referred to. Undoubtedly a recovery by the defendant in his action against the Phenix Insurance Company upon his policy of insurance is a bar-against the insurance company from setting up in its own right any claim against the defendant because of the loss of the vessel, because a recovery, upon the policy is inconsistent with the existence, of such right of action Doty v. Brown, 4 N. Y. 71; Castle v. Noyes, 14 N. Y. 329; Gates v. Preston, 41 N. Y. 113. But the plaintiff in this action does not represent any claim which the insurance company had as against the defendant, but that which Parsons & Loud had as part owner of the vessel. Such being-the case, therefore, the judgment rendered in the case of Hays v. Insurance Co., supra, in no way operated as an estoppel against Parsons & Loud from maintaining an action upon the same ground upon which the insurance company based its defense. This is clearly so, because estoppels, to be available, must be mutual. Lawrence v. Campbell, 32 N. Y. 455. If, therefore, Parsons & Loud were not precluded from maintaining an action against the defendant, their assignees are endowed with all the rights which they themselves possessed. It being, therefore, the claim of Parsons & Loud which is sought to be enforced in this action, and the plaintiff being merely their successor in interest, he would seem to be entitled to all the rights which they could have enforced against the defendant. The mere fact that the intermediary was the Phenix Insurance Company in no way affects this right, because he represented a different and distinct interest from that which the insurance company represented in the action of Hays against it. Mersereau v. Pearsall, 19 N. Y. 109. We think, therefore, that the previous judgment did not operate as an estoppel, and the plaintiff had a right to try the issue presented by the plaintiff upon the merits. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.  