Gutfreund v. Standard Life & Accident Ins.

98 N.Y.S. 699

Opinion

SCOTT, P. J.

I do not think that the judgment in the action of Basserman v. Gutfreund was res adjudicata upon the question of this plaintiff’s copartnership with his brothers. Certainly that judgment can have no more binding force between Sigmund Gutfreund and the present defendant than it would have between Sigmund Gutfreund and his brothers, who were codefendants in the Basserman action, and it seems to be well settled that the Basserman judgment would not be res adjudicata between the defendants therein on the question of their liability, as between themselves, to pay the judgment. Neither-is it, in my opinion, res adjudicata as between the parties to this action on the question whether or not the horse belonged ’to plaintiff or to him and his brothers as partners. The plaintiff should therefore have been allowed to show that it was his horse that injured Basserman, and that he alone was liable for the judgment, which he alone paid.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

All concur.