The heir is privy in blood to the ancestor; the executor, privy in representation to the deceased; the donee or lessee, privy in •estate to the donor or lessor; the successor by escheat, privy in law to his predecessor. (1 Greenl. on Ev., § 189.)
The husband is not privy to the wife in any of these respects; in blood, representation, estate or law.
The husband did not derive his title to the present cause of action through his wife. It never belonged to her. She could not have, released it. If she had acknowledged full .payment by the •defendant of all damages, before she brought her action, that would not have discharged the defendant from liability to the husband for his loss. If she had sued the defendant and had failed to recover, that would not have barred him.
If the plaintiff’s horse had been injured under similar circumstances, and he had sued for the damage, it would not be properly said that he derived his title to the action from his horse, or that he was privy to his horse; nor is the plaintiff’s right of action in this case derived from his wife, because it never belonged to her and could never have been affected by her acts'.
The defendant’s alleged wrongful acts injured two persons, the husband and the wife; the latter principally by,causing bodily suf*175fering, the former by taking away services to which he was entitled. But the injuries were distinct, though caused by the same act.
The fact that the same evidence to a great extent, may be applicable in this case as was given in the action of the wife; such as proof of defendant’s negligence, etc., does not make the former judgment conclusive in this action. Suppose that A. owned a horse and B. owned the wagon to which it was hárnessed; • and that horse and wagon were injured by defendant’s negligence. If A. sued and recovered, the recovery would be no evidence in B.’s favor. Yet the same evidence might be used and needed'in both caaes.
The reason why judgments bind privies is that*the privies take only what the persons had to whom they succeed, and all that such persons had. But this plaintiff does not take what his wife had but has an independent action of his own.
The judgment should be reversed and new trial granted, costs to abide event.
Bockes, J., dissenting. Present — Learned, P. J., Boardman and Bocees, JJ.Judgment reversed, new trial granted, costs to abide event.