Blenk v. Green Bus Lines, Inc.

248 A.D. 818, 290 N.Y.S. 750, 1936 N.Y. App. Div. LEXIS 7492

Opinion

Order denying plaintiffs’ motion for an order striking out a defense of res judicata on the ground of insufficiency reversed on the law, with ten dollars costs and disbursements, and motion granted, -with ten dollars costs. The defense does not contain an allegation that the present plaintiffs were found to have been guilty of negligence in the prior action, nor does it appear that a judgment holding them negligent was entered. If it were found in the prior action that the present plaintiffs were not guilty of negligence, further findings as to the presence or absence of negligence upon the part of the present defendant would not be conclusive as to the present- litigation. (Donahue v. New York Life Ins. Co., 259 N. Y. 98, 102.) Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.