The opinion
Taylor, J.
(dissenting). This action is founded upon plaintiff’s claim that the defendant is, by operation of law, an indemnitor of the plaintiff and liable to it for a sum of money paid by plaintiff to one Sinski, under compulsion, in settlement of a judgment recovered by Sinski against the plaintiff for damages for personal injuries sustained by Sinski by reason of plaintiff’s alleged negligence. In the Sinski action the plaintiff herein was the sole party defendant. Plaintiff here seeks to recover also a sum of money for its reasonable expenses in defending that action. Here for review is the award by the Special Term of summary judgment in favor of the defendant, pursuant to rule 113 of the Rules of Civil Practice. The plaintiff in effect pleads and the defendant denies that the injuries sustained by Sinski, damages for which have been thus recovered by him against plaintiff and paid by the latter, were caused solely by the negligence of the defendant, and plaintiff further claims that it was guilty of no negligence causing, or contributing to, those *731 injuries. The record discloses that a triable issue of fact exists as between plaintiff and defendant in that respect.
The complaint states facts sufficient to. constitute a cause of action in favor of the plaintiff against the defendant, as plaintiff’s indemnitor by implication of law, hable as such to plaintiff, upon the pleaded facts, for the amount of plaintiff’s lawful damages. (O. S. N. Co. v. Co. T. E., 134 N. Y. 461, 469 ; Trustees of Geneva v. Brush Electric Co., 50 Hun, 581 ; 55 id. 603; 8 N. Y. Supp. 203 ; affd., 130 N. Y. 670 ; City of Rochester v. Montgomery, 9 Hun, 394 , 396; affd., 72 N. Y. 65 ; Phoenix Bridge Co. v. Creem, 102 App. Div. 354 ; affd., 185 N. Y. 580 ; Bunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214, 217 ; Knippenberg v. Lord & Taylor, 193 App. Div. 753 , revg. 111 Misc. 427 ; Lord & Taylor v. Yale & Towne Mfg. Co., 230 N. Y. 132, 136 .) The circumstance that Sinski was an employee of defendant, which had secured to its employees compensation as provided in the Workmen’s Compensation Law, is insufficient legally to render defendant, such indemnitor, immune from liability to plaintiff upon the cause of action alleged. The provisions of section 11 of that statute constitute no barrier to this action. (Westchester L. Co. v. Westchester C. S. E. Corp., 278 N. Y. 175 .) The judgment in the action of Sinski against the plaintiff herein is not res judicata in this action, nor is plaintiff, as between itself and the defendant herein, bound by the verdict in the Sinski action, implicit in which is a finding, in effect, that Sinski’s injuries were caused solely by the negligence of the plaintiff herein, for the reason that the defendant was not a party to that action and is not in legal privity with either party thereto. (O. S. N. Co. v. Co. T. E., supra; Pearce v. Kenney, 152 App. Div. 638 ; United States Fire Ins. Co. v. Adirondack P. & L. Corp., 206 id. 584, 587.) Plaintiff, as between itself and the defendant, therefore, may litigate herein the questions of fact arising upon the pleadings. (Lord & Taylor v. Yale & Towne Mfg. Co., supra; Knippenberg v. Lord & Taylor, 111 Misc. 427 ; revd., but not on this point, 193 App. Div. 753 ; N. Y. Consolidated R. R. Co. v. Mass. B. & Ins. Co., Id. 438, and cases there cited.) Triable issues are presented by this record. They relate to the alleged negligence of the defendant to which the injuries of Sinski were, according to plaintiff’s pleading, solely due, and to plaintiff’s alleged freedom from any negligence on its part causing or contributing to those injuries.
The order and judgment appealed from should, therefore, be reversed and the defendant’s motion to dismiss the complaint denied.
Johnston, J., concurs.
Order and judgment affirmed, with ten dollars costs and disbursements.