
    James Self, Respondent, v. International Railway Company, Appellant. (Two Cases.)
    Fourth Department,
    June 29, 1928.
    
      Selby G. Smith [John J. K. Caslcie of counsel], for the appellant.
    
      Templeton, Turnbull & Templeton [Irving R. Templeton and Foster B. Turnbull of counsel], for the respondent.
   Per Curiam.

In December, 1923, Ethel Black, while riding as a passenger in an automobile driven by this plaintiff, was killed in a collision between the automobile and one of defendant’s street cars. The administratrix of her estate sued this plaintiff and defendant jointly and severally for damages. The jury verdict was in favor of the administratrix against the International Railway Company and in favor of this plaintiff (then a defendant) of no cause of action. In the instant case the City Court of Buffalo permitted plaintiff to introduce into evidence the judgment roll in the prior action, and considered the question of damages only. The Supreme Court, at Special Term, affirmed the judgment for plaintiff, resulting in this appeal.

As between this plaintiff and defendant there never was any privity. The principle of respondeat superior was not involved, as in Pangburn v. Buick Motor Co. (211 N. Y. 228). These parties were simply defendants in the prior action, with entirely separate interests, There was no issue between them, The railway company could not control nor direct the plaintiff administratrix in presenting her case.

Much may be found in the books bearing upon the subject of res adjudícala. Extended reference to such authorities is unnecessary in the determination of this appeal. The former judgment was not admissible in evidence because this defendant was not obligated on the former trial to establish its contentions in court as against this plaintiff; nor did it have the opportunity to do so. (Erie R. R. Co. v. Buffalo & Lackawanna Traction Co., 220 App. Div. 520; affd., 246 N. Y. 625.)

The judgment should be reversed on the law and a new trial granted in the City Court of Buffalo, with costs to appellant to abide the event.

All concur. Present — Httbbs, P. J., Sears, Crouch, Taylor and Sawyer, JJ.

In each case: Judgment reversed on the law and a new trial granted in the City Court of Buffalo, with costs in all courts to the appellant to abide the event.  