Summary
In Holmes v. Ivanhoe Cleaners Dyers, Inc. (252 App. Div. 765), this court seems to have approved the practice of using a certain finding as the basis of a bar even though it was not necessary to make that finding in order to decide the prior action.
Summary of this case from Levine v. PolseyOpinion
October 18, 1937.
Action to recover for personal injuries and property damage arising as a consequence of claimed negligence in an accident involving the collision of two automobiles. Order denying motion of defendant Ivanhoe Cleaners Dyers, Inc., to strike out reply and for judgment on the pleadings reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The movant affirmatively established on a showing, the verity of which is not challenged, its plea of res judicata. It was not confined to the naked provisions of the judgment in the Municipal Court, which, standing alone, would leave undisclosed whether the dismissal in that action was due to a failure to prove that the defendants in that action were or were not negligent. It properly had recourse to what the record in that action shows, to wit, that the decision therein was due to a determination as a fact that both the plaintiffs and the defendants in that action were negligent. The decision of those issues of fact in the Municipal Court action precludes their being litigated anew in the Supreme Court action, since there are identity of parties and identity of issues resolved in a manner that causes an estoppel which sustains the plea of res judicata. ( Cahnmann v. Metropolitan Street R. Co., 37 Misc. 475; Carmen v. Fox Film Corporation, 204 App. Div. 776; Foster v. White Sons, 244 id. 368; People ex rel. Village of Chateaugay v. P.S. Comm., 255 N.Y. 232, 238.) What was signed by the trier of the fact in the Municipal Court action is to be deemed a finding of fact which concludes the parties. Hagarty, Carswell, Davis, Adel and Taylor, JJ., concur.