Emil Grande v. Mary J. Torello Et Al‪.‬

In an action to recover damages for injury to person and property arising out of a collision between a motor vehicle owned and operated by plaintiff and a motor vehicle owned by defendant Torello and operated by defendant De Simone, defendants appeal from an order of the Supreme Court, Kings County, dated September 14, 1960, which denied their motion, made pursuant to rule 113 of the Rules of Civil Practice, to dismiss the complaint. The motion was made on the ground that a judgment of the said court, entered March 14, 1960, against plaintiff and defendant Torello, in favor of Judith Lerro, a passenger in said defendant's automobile, awarding such passenger $3,500 for personal injuries sustained by her as a result of the same accident, is res judicata. Order affirmed, with $10 costs and disbursements. We are in accord with the determination by the Appellate Division in the First Department that until Glaser v. Huette (232 App. Div. 119, affd. 256 N. Y. 686) has been specifically overturned by the Court of Appeals the doctrine of that case should be applied to situations such as that presented here (see Friedman v. Salvati, 11 A.D.2d 104). Moreover the defense of res judicata may not be asserted by defendants in support of their motion for judgment dismissing the complaint pursuant to rule 113 of the Rules of Civil Practice, until such defense is pleaded in their answers (Ziegler v. Mancuso & Alessio, 283 App. Div. 813, 814, Planet Constr. Corp. v. Board of Educ., 7 N.Y.2d 381, 386). Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.