Erie Railroad v. Buffalo & Lackawanna Traction Co.

Headnote

Pleading — contract — judgment — estoppel —• action to recover on contract amount of judgment paid by plaintiff ■— defense that in former action verdict of no cause of action was rendered in favor of defendants herein.

Erie R. R. Co. v. Buffalo & Lackawanna Traction Co., 220 App. Div. 520 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 11, 1927, which affirmed an order of Special Term striking out affirmative defenses set up in the answers. The action was upon a contract by virtue of which plaintiff sought indemnity from the defendants for the amount of a judgment and interest recovered against and paid by the Erie Railroad Company in an action entitled “ George J. Brendel against Erie Railroad Company and George Bullock as Receiver of Buffalo and Lake Erie Traction Company.” The defendants in their answer in this action pleaded as a. defense hereto the judgment entered upon the verdict of the jury in the former suit wherein a verdict of no cause of action was rendered in favor of the defendant Bullock. It was contended that the said judgment entered upon the merits estops the plaintiff in this action from relitigating the questions of negligence necessarily involved and passed upon in the Brendel action. The following questions were certified:

“ 1. Should the second answer and defense of the defendant George Bullock, as receiver of the Buffalo and Lake Erie Traction Company to plaintiff’s amended complaint be stricken from the answer on the ground that it is insufficient in law? 2. Should the second answer and defense of the defendant, Buffalo and Lackawanna

Traction Company to plaintiff’s amended complaint be stricken from the answer on the ground that it is insufficient in law? ”