(dissenting). The determination of the majority disregards the plain terms of CPLR 1401 and the proper effect of the adjudications which are binding upon the parties.
The judgment herein in favor of the plaintiff was rendered against the four defendants jointly. Under the general rule, the amount of the judgment is to be “ divided by the number of defendants against whom it is recovered”. (2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 1401.07.) Therefore, except as equitable considerations or as determinations on cross or third-party claims may justify a different result, the City, Consolidated Edison, Surface and Slattery should each pay one fourth of plaintiff’s recovery; and the defendant Slattery, which “ has paid more than [its] pro rata share ”, to wit, one fourth, would ordinarily be entitled to contribution from the other defendants with respect to the excess paid over and above its “pro rata share”. (CPLR 1401.)
This is not a case where (1) the liability of one or more of the defendants was derived from and depends upon the liability of another; (2) where two or more of the defendants were “ united in interest ”; or (3) where the liability of two or more defendants was “consolidated or unified”. (See Wold v. Grozalsky, 277 N. Y. 364, 366-367; Martindale v. Griffin, 233 App. Div. 510, affd. 259 N. Y. 530; Lyons v. Provencial, 20 A D 2d 875; Benjamin v. Faro, 1 A D 2d 948; Oliver v. McPherson, 24 Misc 2d 1072; Marymount Coll. v. Abramsen Co., 6 Misc 2d 836.) All of the defendants here were found liable to plaintiff for separate and independent acts or omissions of negligence jointly contributing to the plaintiff’s injuries. So, prima facie, on the basis of the judgment jointly against the four defendants, *397the City, Surface, Con Edison and Slattery, are as between themselves, each liable to pay one fourth (4/16ths) of the amount of plaintiff’s recovery.
The City, however, has recovered judgment on its cross claim against Con Edison and Slattery. Therefore, by virtue of the terms of such judgment, the City is relieved from liability for contribution to Slattery; and responsibility for its share of the recovery is shifted to Con Edison and Slattery. So, because of City’s recovery over against Con Edison and Slattery, it would follow that each of the latter would be liable for 6/16ths of plaintiff’s judgment, with Surface liable for one fourth (4/16ths) thereof. Con Edison, however, has recovered judgment on its cross claim against Slattery and on its third-party complaint against Fitzgerald. This imposes upon Slattei'y and Fitzgerald the obligation to assume Con Edison’s responsibility, as aforesaid, namely, to pay 6/16ths of plaintiff’s recovery. Thus, Fitzgerald should pay 3/16ths of plaintiff’s recovery and Slattery should be held liable to pay 3/16ths thereof in addition to the 6/16ths for which it is liable, as aforesaid. The result is that plaintiff’s recovery should be apportioned between Surface, Slattery and Fitzgerald, as follows: Surface to pay 4/16ths, Slattery to pay 9/16ths, and Fitzgerald to pay 3/16ths. Since Surface has already paid one fourth (4/16ths) of the amount due plaintiff, and Slattery has paid the remaining three fourths (12/16ths), Slattery is entitled to contribution from Fitzgerald for 3/16ths of the plaintiff’s judgment.
It is not necessary to consider independently the alignment or relationship of the parties or the equities as between them because here the terms of the judgments have in effect definitely and conclusively fixed the basis for their ultimate liability to pay plaintiff’s recovery.
The majority would absolve Fitzgerald from responsibility for any contribution toward the payment of plaintiff’s judgment. This, however, disregards and nullifies the adjudication of the trial court that Fitzgerald, jointly with Slattery, shall pay the sum which Con Edison is bound to pay under plaintiff’s judgment. Such adjudication constitutes a final determination settling the responsibility as between Slattery and Fitzgerald to satisfy Con Edison’s obligation under plaintiff’s judgment. Under res judicata principles, Fitzgerald should be and is estopped from denying its liability to pay the 3/16ths of plaintiff’s recovery. Furthermore, if equitable considerations are to prevail, then, certainly, Fitzgerald should not be relieved from liability where there is a final determination that it has an obligation to pay 3/16ths of plaintiff’s recovery.
*398McNally and Staley, JJ., concur with Steuer, J.; Eager, J., dissents in opinion in which Rabin, J. P., concurs.
Order entered on December 1, 19.64 modified, on the law, by allowing defendant Slattery Contracting Company to enter judgment against Lester T. Doyle as trustee for Surface Transportation Corporation of New York for 25% of the total judgment in favor of the plaintiff, including interest and costs thereof; and, as so modified, the order is affirmed, without costs and without disbursements. Settle order on notice.