B. R. De Witt, Inc. v. Hall

Appeal from an order of the Supreme Court at Special Term entered January 18, 1965, in Monroe County which granted a motion by plaintiff for summary judgment. Memorándum by the Court: In view of the holding in Elder v. New York & Penn. Motor Express (284 N. Y. 350) plaintiff may not invoke the doctrines [832] o£ res judicata or collateral estoppel to assert a prior judgment, obtained by its driver against this defendant in an action arising out of the same accident, as conclusive proof of defendant’s liability in the present litigation. (See, also, Quatroche v. Consolidated Edison Co. of N. Y., 11 A D 2d 665; Friedman v. Salvati, 11 A D 2d 104.) The dissent herein is predicated upon the supposition that identity of issues has become the primary consideration in the application of these doctrines. It is not however the sole consideration (Minkoff v. Brenner, 10 N Y 2d 1030) and we do not regard the decision in Israel v. Wood Dolson Co. (1 N Y 2d 116) as authority for the offensive use of a prior judgment in the circumstances here presented. In the words of the Court of Appeals, that case (p) 120) was merely an announcement that “in determining the applicability of the doctrine of res judicata as a defense, the test to be applied is that of ‘ identity of issues ’.” (Emphasis supplied.) Lastly, the views expressed in the dissenting opinion to a large extent are those set forth in the concurring opinion of this court in Ordway v. White (14 A D 2d 498). That ease was decided in June, 1961 and six months later our highest court decided Minkoff v. Brenner (supra). A reference to the briefs submitted to that court discloses that appellant relied heavily upon the concurring opinion in the Ordway case and contended, as does the dissenting opinion herein, that the true test is identity of issues and not the posture of the parties. The Court of Appeals by its affirmance of the order in Minkoff inferentially rejected those contentions. We conclude that we are bound thereby.