Defendants moved for leave to amend their answer to include a defense of res judicata in this personal injury and wrongful death negligence action. The order denying the motion should be affirmed if the defense is patently insufficient.
The defense is patently insufficient because, in the prior action in which plaintiff failed to recover, as compared with the instant action, the defendants in neither are the same* nor do they bear to one another any relevant jural relationship, and because the causes of action are entirely different and independent of each other.
The present tort action is brought to recover for personal injuries and wrongful death sustained by plaintiff’s decedent while a passenger in her son’s automobile. The present defendants are the owner of the automobile and the son, who was the operator. The prior contract action was brought by plaintiff directly against the son’s insurance company for medical payments (limited to $2,000), under a liability policy which carried the separate contract provision for medical payments payable to injured passengers, independent of any liability based on fault in negligence or otherwise. In the prior action the jury determined the issues in favor of the defendant insurance company. One of the issues was whether decedent was injured while a passenger in the automobile at the time. Judgment ensued in favor of defendant insurance company. It is this judgment defendants in this case would interpose as a defense to the action based on liability in tort.
There is an identity of issue in both cases, namely, whether decedent was injured in the automobile at the time of the accident, but that is the only identical issue. The other issues are different, the nature of the cause of action is different, and, of critical significance, the parties defendant are different. Moreover, such defendants are utterly unrelated by any species of privity, derivation or dependency of claim, or right to indemnity.
*268Generally, the doctrine of res judicata applies to judgments rendered between the same parties on the same cause of action. In that case, the test is whether a contrary subsequent judgment would undermine the prior judgment (Statter v. Statter, 2 N Y 2d 668; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304). Collateral estoppel will apply to judgments rendered between the same parties on different causes of action where identical issues have been actually litigated (Matter of Fairmeadows Mobile Vil. v. Shaw, 16 A D 2d 137 [per Bastow, J.]). Where the parties are different there are only a few classes of exceptions in which collateral estoppel will apply (Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14, 17-18; Restatement, Judgments, § 93).
A classic exception is one where a plaintiff has been defeated in a prior action against the present defendant’s indemnitor (Hinchey v. Sellers, 7 N Y 2d 287, 295; Restatement, Judgments, §§ 96, 97). The reverse is not an exception, namely, where plaintiff has been defeated in a prior action against the indemnitee, although, of course, the issues are identical (Restatement, Judgments, §§ 96, 97; see Manard v. Hardware Mut. Cas. Co., 12 A D 2d 29 and cases cited). Another exception is where plaintiff sues on a cause of action that is derivative from or dependent upon a prior cause of action against another on which the prior defendant obtained a dismissal on the merits. Such a case is Israel v. Wood Dolson Co. (1 N Y 2d 116). There, a plaintiff suing for tortious interference with plaintiff’s contract for brokerage commissions was held barred from recovery by a prior judgment which determined that plaintiff had no contract for commissions to begin with (see Restatement, Judgments, § 99, especially Illustration 1).*
*269In this case, there is no relevant relationship of any kind, between defendants here and the defendant insurance company in the prior action, upon which a right of indemnity might depend. Nor is the tort cause of action here dependent upon or derived from any right in contract involved in that action for which either party in this action might be responsible (Restatement, Judgments, § 99).
In Israel v. Wood Dolson Co. (supra) the Court of Appeals discussed several classes of exceptions. The reference to the test of “ identity of issues ” was in the expressed context of the relationships of privity, indemnity, or dependent cause of action. Nothing in the case suggests that it always suffices to base collateral estoppel against a party merely upon one identical issue in otherwise different litigations with different parties. Whether viewed as a matter of privity or dependency of causes of action, the same principle on the same rationale in the Wood Dolson case was applied subsequently in Vidor v. Serlin (7 N Y 2d 502, 510). On the other hand, it has given this court and the Court of Appeals little difficulty, even after the pronouncement of the rule in the Wood Dolson case, that neither of two joint tort-feasors is barred from suing the other for negligence, after a prior judgment recovered against both for negligence in the same accident, although, again, there were identical issues (Friedman v. Salvati, 11 A D 2d 104; Minkoff v. Brenner, 13 A D 2d 838, affd. 10 N Y 2d 1030; compare Ordway v. White, 14 A D 2d 498, concurring opinion by Halperh, J.).
Needless to say, the doctrine of res judicata, and the corollary doctrine of collateral estoppel are realistic doctrines based upon the interest of justice and economy of resources devoted to the administration of justice. It has always been realistically recognized that in different litigations there may be different commitments of effort and expense depending upon the possible results, and that, in litigations between different litigants, there may also be different commitments and, consequently, inconsistent results (Commissioners of State Ins. Fund v. Low, 3 N Y 2d 590, 595-596, in which, in addition, the Court of Appeals expressed a caveat as to the scope of the rule in the Wood Dolson case, supra-, see, also, Bruszewski v. United States, 181 F. 2d 419, especially concurring opinion by Goodrich, C. J.; Eisel v. Columbia Packing Co., 181 F. Supp. 298, especially 301 [Wyzanski, D. J.]).
The defense, on any view, is neither sham nor frivolous. On the contrary, the allegations appear to be demonstrably true. The question, one purely of law, is whether the defense, even if the allegations be true, is sufficient. The difference is that *270between rules 103 and 109 of the Rules of Civil Practice. This may be bypassed now (as Special Term did not) but the same question, on the same record, and on substantially the same briefs, would arise on a motion by plaintiff to strike the defense as legally insufficient (under Rules Civ. Prac., rule 109) and a cross motion by defendant for summary judgment (under Rules Civ. Prac., rule 113).
Of course, where a question of law is involved which may be determinative of the case, no useful litigation purpose is served hy failing to decide it definitively, and passing the problem indecisively to he reviewed at nisi prius.
Accordingly, I dissent and vote to affirm the order denying defendants’ motion to serve an amended answer.
Rabin, J., concurs with McNally, J.; Valente J., concurs in result; Breitel, J. P., dissents in opinion in which Eager, J., concurs.
Order, entered on July 2, 1962, reversed, on the law and on the facts, with $20 costs and disbursements to the appellants, and the motion granted to the extent of permitting the service of an amended answer pleading collateral estoppel as a defense.
Defendant Bernard Friedman, the operator of the automobile in suit, was originally a plaintiff in the prior aetion, but he ceased to be a party before the trial and judgment.
The Restatement expresses the rule in the Wood Dolson ease as follows:
“ § 99. WHERE LIABILITY OF A PERSON IS BASED SOLELY UPON THE ACT OF ANOTHER.
“A valid judgment on the merits and not based on a personal defense, in favor of a person charged with the commission of a tort or a breach of contract, bars a subsequent action by the plaintiff against another responsible for the conduct of such person if the action is based solely upon the existence of a tort or breach of contract by such person, whether or not the other person has a right of indemnity.”
Illustration 1 is substantially the Wood Dolson case:
“ 1. A, without privilege, induces B to break a contract with C. In an action for breach of contract by C against B the court finds that B committed no breach of contract, not because of any personal privilege but because the terms of the contract did not provide against the 'conduct charged to be a breach of contract. In a subsequent action by C against A the prior judgment is a complete defense.”