Ogilvie v. Slowey

Appeal by defendant Schule from an order of the Supreme Court, Queens County, dated April 22, 1968, which granted defendant Slowey’s motion inter alia for summary judgment dismissing the action as against Slowey. Order reversed, on the law, with $10 costs and disbursements to defendant Schule against defendant Slowey, and motion denied. No questions of fact were considered. In our opinion, in a negligence action brought against two- defendants who had previously been adversaries in another action based on the same automobile accident, one of the defendants may question the sufficiency of the other’s defense of res judicata, even though plaintiff has not (Higginbotham v. Rath, 30 A D 2d 93). Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.