On June 30, 1938, a collision occurred on Highway No. 52 near Jeffersonville, Sullivan County, between an automobile owned and operated by defendants Keim and an automobile owned and operated by defendant Orel. Plaintiffs Marion Sanders Mink, Helen Lefkowitz and Abraham Altschuler were passengers in the car operated by Orel. Plaintiff Herman Mink is the husband of Marion Sanders Mink.
Keim and his wife brought an action in the Supreme Court of Sullivan County against Orel to recover damages for injury to their car in which Mrs. Keim set up a cause of action for personal injuries and Keim for loss of her services, referred to as Action No. 1. In Action No. 2, Orel sued Keim and his wife in Kings County to recover property damage and for personal injuries. In Action No. 3, Helen Lefkowitz sued Keim and his wife and Orel in Bronx County to recover damages for *Page 303 personal injuries. In Action No. 4, Mink and his wife sued Keim and Orel in New York County for loss of services and for personal injuries, respectively, and in Action No. 5, brought in Bronx County, Abraham Altschuler sued Orel and Keim for personal injuries. The actions were consolidated and moved for trial as separate actions in Sullivan County. None of the parties appeared at the trial except Keim and his wife who offered proof of damages in the causes of action set up in Action No. 1, Action No. 2 was withdrawn, and the court assessed damages in their favor against Orel. The Keims thereupon moved to dismiss the complaints upon the merits as against plaintiffs in Actions Nos. 3, 4 and 5, which motion was granted. A single judgment was then docketed in which the court, treating the various actions separately as numbered above, awarded damages to Keim and his wife against Orel in Action No. 1 and dismissed the complaints in Actions Nos. 3, 4 and 5 "upon the merits."
This action was subsequently commenced in New York County by the passengers in the Orel car and the husband of one of them to recover damages arising as the result of the collision. As separate affirmative defenses, Keim and his wife alleged (1) that the injuries and damages alleged to have been sustained by the plaintiffs were caused wholly and solely through the negligence and carelessness of Orel and (2) that the judgment theretofore entered in Actions Nos. 3, 4 and 5 above constituted a conclusive adjudication upon the merits. Keim and his wife moved at Special Term to dismiss the present complaint, which motion was denied, but, upon appeal, the Appellate Division held that the judgment in the former action was a bar to the maintenance of the present suit.
The plaintiffs here were plaintiffs in the former actions and were so considered and designated in the judgment by the trial court. They could not be transformed into something else by a consolidation of the actions. There was no merging of the several causes of action or distribution of the parties according to their respective claims into one consolidated action and no attempt was made to change their character as claimants in the consolidated actions. After the alleged consolidation they continued to be plaintiffs at the time the cases were moved for trial. They were moved for trial as separate cases. There *Page 304 could be no judgments entered against plaintiffs "on the merits" since such a judgment can only come at the close of the plaintiff's evidence (Civ. Prac. Act, § 482). When the cases were moved for trial by defendants Keim, the plaintiffs offered no proof; they did not appear at the trial and their complaints were dismissed on motion of defendants Keim because of their failure to appear or put in any evidence at all. The effect of the judgment was nothing more than a nonsuit (Honsinger v. UnionCarriage Gear Co., 175 N.Y. 229, 232). Thus the recital in the judgment that the dismissal of the complaints were on the merits lends no aid to defendants' claim here that the judgment either as a technical estoppel or as evidence conclusive per se bars the maintenance of the present action (Clark v. Scovill,198 N.Y. 279; People v. Ladew, 237 N.Y. 413, 419; Brick v.Cohn-Hall-Marx Co., 283 N.Y. 99, 104).
There was no privity between the passengers of the Orel car and the owners and operator of either car involved in the collision, nor was there mutuality of estoppel. Actionable negligence can arise only out of the breach of some duty and is necessarily relevant to circumstances of time, place or person (Connell v.N.Y.C. H.R.R.R. Co., 144 App. Div. 664). "The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances" (Larmore v. Crown Point IronCo., 101 N.Y. 391, 394). The only question litigated in the consolidated action was whether the negligence of the Keims or Orel, as between themselves, was the sole proximate cause of the collision. As to the plaintiffs, both Orel and the Keims might be held jointly liable for damages although, as between themselves, the owner and driver of one car might not be liable to the other. Both owed to these plaintiffs the duty of exercising ordinary care to avoid the accident. The claims of the plaintiffs here were not involved in the issue presented and litigated in the former action; and the two actions did not "have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first" (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304;Neenan v. Woodside Astoria Transportation Co., 261 N.Y. 159;Marine Transit Corp. v. Switzerland General Ins. Co.,263 N.Y. 139; Elder v. New York Pennsylvania Motor Express,Inc., 284 N.Y. 350). *Page 305
The judgment of the Appellate Division should be reversed and the order of Special Term affirmed with costs in this court and in the Appellate Division.