(dissenting). I dissent and vote for reversal upon the ground that the answer raises a question of fact. The jury in *523the action by Brendel against the plaintiff and defendants herein, found that the injury to Brendel was caused solely by the negligence of the Erie Railroad Company and that the defendants herein were free from “ any negligence which caused or contributed to the accident.”
If the plaintiff recovers herein it must be upon a finding by the jury that the defendants were guilty of some negligence which contributed to the accident by which Brendel was injured, which finding would be directly contrary to the verdict of the jury in the first action. If it appears upon the trial herein that the judgment in the Brendel action was based upon a finding of fact which was litigated in said action, in which all of the parties herein were defendants, there can be no recovery herein. That question the defendants should be permitted to plead as a defense. (Fulton County Gas & Elec. Co. v. Hudson River Telephone Co., 200 N. Y. 287; Buchholz-Hill Transp. Co. v. Baxter, 206 id. 173; Town of Flagstaff v. Walsh, 9 F. [2d] 590.)
Order affirmed, with ten dollars costs and disbursements.