
    Paul Williams, App’lt, v. William Hays, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    Estoppel—Negligence.
    Plaintiff sues as assignee of an insurance company to recover an amount paid by it to part owners of a vessel for its stranding and loss, alleged to" have been caused by defendant’s negligence as master thereof. The defendant set up in bar of the action a judgment recovered by him as part owner against the insurance company in an action to which the claim of his negligence was interposed as a defense. Meld, that such judgment was not a bar, as it was the claim of the other part owners to which the. insurance company became subrogated which was the subject of this action, and such part owners were not estopped by such judgment. «
    Appeal from judgment entered upon verdict directed by the court.
    
      G. A. Black, for app’lt; W. W. Goodrich, for resp’t.
   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 becEtme 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 was 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 had been affirmed by the court of appeals. 57 Supr. Ct., 199; 25 St. Rep., 123; 127 N. Y., 656; 38 St. Rep., 1015.

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 id., 329; Gates v. Preston, 41 id., 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 owners of the vessel.

Such being the case, therefore, the judgment rendered in the case of Hays v. Phenix Ins. Co. 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 Ins. Co. 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., 108.

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.

O’Brien and Andrews, JJ., concur.  