
    Nelson Corey, Jr., et al., Plaintiffs, v. Central Taxi, Defendant.
    Supreme Court, Special Term, Albany County,
    March 16, 1951.
    
      
      Malcolm G. Bibby for defendant.
    
      Paul F. Donohue for plaintiffs.
   Taylor, J.

The defendant seeks leave to serve what is denominated a supplemental answer to allege the separate defense of res judicata. This action is to recover for the property damage to the automobile of Nelson Corey, Jr., sustained through the alleged negligence of the defendant on or about the 2d day of June, 1946. On February 19, 1948, in the Supreme Court of Rensselaer County, Charles Coonan, a passenger in the defendant’s taxicab, recovered a judgment, which has been satisfied, against this defendant and Nelson Corey, Jr. It is the defendant’s contention that the jury’s verdict in the former trial finding the plaintiff and defendant in this action joint tort-feasors entitles this defendant to plead res judicata as a defense to this action.

The summons herein was served on March 26, 1948, subsequent to the jury’s verdict in the first action, and issue was joined on June 8, 1949. "While the affidavit in support of the motion fails to set forth facts which satisfactorily excuse the failure to set forth all the material facts in the original pleading (Jacobs v. Mexican Sugar Refining Co., 115 App. Div. 499, 502; Pratt, Hurst & Co. v. Tailer, 99 App. Div. 236, 238; Mutual Loan Assn. v. Lesser, 81 App. Div. 138; Matter of Hossan, 162 Misc. 333, 335), there is a more compelling reason for denying the relief sought. The plea of res judicata is not available to this defendant since these parties were not adversaries but codefendants in the former suit, wherein .no duty existed to contest the issue of negligence as between them, no pleadings existed between them and the decision there settled nothing as to the liability of the codefendants to each other. (Glaser v. Huette, 232 App. Div. 119, affd. 256 N. Y. 686; Daly v. Terpening, 261 App. Div. 423, affd. 287 N. Y. 611; Boyne v. Samac Motors, 91 N. Y. S. 2d 634.)

The motion is denied, with costs.

Submit order.  