author: Fboessel, J.

text:
    Agnes V. Stolz, as Administratrix of the Estate of Henry G. Stolz, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    Argued November 20, 1959;
    decided December 30, 1959.

      John R. Davison and Benjamin S. Wolman for appellant.
    I. Defendant’s liability on the unchallenged evidence is imposed by Federal statute and Federal law is controlling on the right to substitute another as the personal representative of the deceased in these actions. But, even if State law controls, the actions did not abate and there can be a substitution. (Matter of Wenkhous, 158 Misc. 663; Mumma v. Philadelphia & R. Ry. Co., 275 Pa. 277; Keith v. Texas & P. Ry. Co., 171 La. 757; Wabash Ry. Co. v. Bridal, 94 F. 2d 117; New York Cent. R. R. v. Kinney, 260 U. S. 340; St. Louis & Iron Mountain Ry. v. Graft, 237 U. S. 648; Southern Pacific Co. v. Heavingham, 236 F. 2d 406; St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156, 243 U. S. 630; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Goode, 163 Ky. 60.) II. Plaintiff did not fraudulently invoke the jurisdiction of the Surrogate’s Court and, therefore, its jurisdiction to issue letters of administration to her is conclusively established and cannot be collaterally attacked. (Lapiedra v. American Sur. Co., 247 N. Y. 25; People v. Federated Road Ccorp., 244 N. Y. 33; O’Connor v. Huggins, 113 N. Y. 511.) III. Whether plaintiff was legally the widow of decedent was not made an issue in this action and defendant should not have been heard to challenge the validity of the marriage. If such issue was properly made a subject of this litigation, insufficient evidence was adduced to overcome the presumption of the validity of the marriage. (Rapee v. Beacon Hotel Corp., 293 N. Y. 196; Abbott v. Curran, 98 N. Y. 665; Walthour v. Public Serv. Interstate Transp. Co., 280 App. Div. 818; Whiting v. Glass, 217 N. Y. 333; Harmon v. Peats Co., 243 N. Y. 473; Hoffstaedter v. Carlton Auto Supplies Co., 203 App. Div. 494; Griffin v. Long Is. R. R. Co., 101 N. Y. 348; Adams v. Lawson, 188 N. Y. 460; Smith v. New York Cent. R. R. Co., 183 App. Div. 478; Beaudoin v. Beaudoin, 270 App. Div. 631; Thorp v. Thorp, 90 N. Y. 602; Moore v. Hegeman, 92 N. Y. 521; Fisher v. Fisher, 250 N. Y. 313; Matter of Sokoloff, 166 Misc. 403.) IV. Defendant by its conduct is estopped from asserting that the Statute of Limitations has run against a successor to plaintiff as the personal representative of deceased and its lack of right to do so should now be determined.

      Earl H. Gallup, Jr., and Charles E. Nichols for respondent.
    I. Plaintiff was not the widow of the deceased because their marriage was void. (Beaudoin v. Beaudoin, 270 App. Div. 631.) II. The pleadings put in issue the validity of plaintiff’s appointment as administratrix. (Jenkins v. Pullman Co., 96 F. 2d 405, 305 U. S. 534; St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156; Hoffstaedter v. Carlton Auto Supplies Co., 203 App. Div. 494; Griffin v. Long Is. R. R. Co., 101 N. Y. 348; Adams v. Lawson, 188 N. Y. 460; Smith v. New York Cent. R. R. Co., 183 App. Div. 478; City of New York v. Streeter, 91 App. Div. 206, 180 N. Y. 507; Mosler Holding Corp. v. Bell, 2 A D 2d 963; Stroock Plush Co. v. Talcott, 129 App. Div. 14; McManus v. Western Assur. Co., 43 App. Div. 550, 167 N. Y. 602; Whiting v. Glass, 217 N. Y. 333; Imperator Realty Co. v. Tull, 228 N. Y. 447.) III. Since the appointment of plaintiff as administratrix was void by reason of constructive fraud, it was subject to collateral attack and, therefore, the action was abortive as she lacked capacity to maintain it. (Ziemer v. Crucible Steel Co., 99 App. Div. 169; Webster v. Kellogg Co., 168 App. Div. 443; Lapiedra v. American Sur. Co., 247 N. Y. 25; Hoes v. New York, N. H. & H. R. R. Co., 173 N. Y. 435; Raab v. New Yorker Fleet Owners’ Assn., 268 App. Div. 884; Catlin v. Grissler, 51 N. Y. 363; Porter v. Waring, 69 N. Y. 250; Wines v. Mayor of City of N. Y., 70 N. Y. 613; Dunham v. Townshend, 118 N. Y. 281; People v. Flack, 216 N. Y. 123; Matter of City of New York [Newport Ave.], 218 N. Y. 274; People v. Federated Radio Corp., 244 N. Y. 33.) IV. The order denying plaintiff’s motion made subsequent to the entry of judgment is not before this court for review. (Vendall v. Briscoe, 3 N Y 2d 932; Englander Co. v. Tishler, 309 N. Y. 794; Pringle v. Edenwald Realty Gorp., 285 N. Y. 612; Roberts v. Hardoncourt, 285 N. Y. 845; Livingston v. Livingston, 222 N. Y. 526; Dalton v. Parker, 221 N. Y. 576; Hammond v. National Life Assn., 168 N. Y. 262.) V. In any event, no motion to substitute a properly appointed administrator has ever been made and, if it were, no such substitution could be made. (Central Vermont Ry. v. White, 238 U. S. 507; Chesapeake & Ohio Ry. v. De Atley, 241 U. S. 310; Second-Employers’ Liab. Cases, 223 U. S. 1; Pelzer v. United Dredging Co., 200 App. Div. 646; Wells v. Merrill, 204 App. Div. 696; Walthour v. Public Serv. Interstate Transp. CCco., 280 App. Div. 818; Lawson v. L. R. Mack, Inc., 246 App. Div. 622; Johnson v. Phœnix Bridge Co., 197 N. Y. 316; Fischer v. Wabash Ry. Co.,
      235 N. Y. 568; Weil v. New York Cent R. R. Co., 235 N. Y. 570; Sapone v. New York Cent. & H. R. R. R. Co., 130 Misc. 755; Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570; St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156, 243 U. S. 630.) VI. The Statute of Limitations is not here involved and, if it should be in a subsequent action brought by a validly appointed estate representative, no prejudice would result to plaintiff or her daughter, and none has by the judgment herein because neither is a beneficiary under the Federal Employers ’ Liability Act. (De Sylva v. Ballentine, 351 U. S. 570; Poff v. Pennsylvania R. R. Co., 327 U. S. 399; Seaboard Air Line v. Kenney, 240 U. S. 489; Hiser v. Davis, 234 N. Y. 300; Olmsted v. Olmsted, 190 N. Y. 458; Matter of Moncrief, 235 N. Y. 390; People ex rel. Meredith v. Meredith, 272 App. Div. 79; Baylis v. Baylis, 207 N. Y. 446; Matter of Tomacelli-Filomarino, 189 Misc. 410; Matter of Vincent, 189 Misc. 489.)
   Fboessel, J.

These consolidated actions, one for wrongful death and the other for pain and suffering, were instituted by plaintiff, as administratrix of the estate of Henry G-. Stolz, under the Federal Employers’ Liability Act (U. S. Code, tit. 45, §§ 51-60, hereinafter referred to as the F.E.L.A.). The complaints were dismissed below on the ground that plaintiff lacked capacity to sue, but “ without prejudice to the commencement of a new action by an administrator validly appointed as such ”. This dismissal took place more than four months after the limitation period prescribed by section 56 of the F.E.L.A.

In her petition to the Surrogate for letters of administration, plaintiff represented herself to be the widow of decedent. The courts below held that she was not decedent’s lawful widow at that time since her marriage to decedent was void. (See discussion below 6 A D 2d 643, 645; Merrick v. Merrick, 266 N. Y. 120; Beaudoin v. Beaudoin, 270 App. Div. 631; De Santis v. De Santis, 20 Misc 2d 16; Domestic Relations Law, § 6, subd. 1; §8.) Hence it was reasoned that her appointment as administratrix was invalid and she lacked the capacity to bring these actions.

By declaring plaintiff’s appointment invalid and thereupon dismissing these actions, Trial Term appropriated to itself certain discretionary powers which the Legislature confided only in the Surrogate. In sections 99-101 of the Surrogate’s Court Act, the Legislature recognized that revocation of letters calls for the exercise of a discriminating discretion by the Surrogate. Section 99 provides for the revocation of letters in 10 enumerated situations. The first situation enumerated is:

‘ ‘ Where the' respondent was, when appointed or when letters were issued to him * * * disqualified by law to act as such, and the * * * objection was not taken by the petitioner, or a person whom he represents, before the letters were granted or the appointment made.” The fourth situation enumerated is: Where the grant of his letters, or his appointment was obtained by a false suggestion of a material fact.” Under the express language of section 101, the revocation of letters is purely discretionary (see Matter of Clark, 136 Misc. 459; Matter of Chinsky, 159 Misc. 591, 596; Withrow, New Surrogates’ Code [Supp. to Redfield’s & Jessup’s Surrogates’ Practice, 7th ed.], p. 92).

In Matter of Clark (supra) a proceeding was instituted for removal of a statutory trustee under section 94 and subdivision 1 of section 99 of the Surrogate’s Court Act. The court held, in light of section 101 of said act and its statutory history, that removal of the trustee was discretionary under sections 99-101. The holding applies with equal force to revocation of letters. In an exceedingly well-reasoned opinion, Surrogate Close traced the history of sections 99-101 of the Surrogate’s Court Act and pointed out that under the predecessor provision of section 101, namely, section 2687 of the Code of Civil Procedure, the revocation of letters was mandatory except in three enumerated situations, not relevant here, in which cases it was discretionary. The effect of section 101, however, was to abolish the previous mandatory provisions and to allow the Surrogate in every case to exercise his discretion. 1 ‘ When enacting the aforesaid sections the Legislature, of course, had in mind the prudent administration and preservation of estates and trust property. It clearly anticipated that a condition might exist or a situation arise where it would not be advisable to revoke letters issued to or remove from office a fiduciary # * \ Unquestionably the Legislature deemed it wise to leave the disposition of such matters wholly to the discretion of the surrogate, so that each particular case could be judged by its own peculiar circumstances and conditions and disposed of, in the words of the statute, ‘ as justice requires. ’ ” (Matter of Clark, supra, p. 463.)

In these actions for wrongful death and for pain and suffering-plain tiff is a mere nominal party. She sues not on her own behalf but as a statutory trustee for the benefit of those persons designated by sections 52 and 59 of the F. E. L. A. (Lindgren v. United States, 281 U. S. 38, 41; Chicago, Burlington & Quincy R. R. Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 163; Stark v. Chicago, North Shore & Milwaukee Ry. Co., 203 F. 2d 786, 787; see Hamilton v. Erie R. R. Co., 219 N. Y. 343, 350; Davis v. New York Cent. S H. R. R. R. Co., 233 N. Y. 242, 246; Winbush v. City of Mt. Vernon, 306 N. Y. 327, 334). A recovery necessarily accrues to the benefit of these designated beneficiaries. Hence the Surrogate, in the exercise of his discretion, even if he found that plaintiff was not entitled to letters on the original application, could have permitted plaintiff to proceed with this litigation upon her limited letters, by which she was already ‘ restrained from compromising said action and from enforcing-any Judgment recovered therein until the further order of the Surrogate ”.

Here, the Trial Judge not only improperly exercised the discretion which the Legislature reposed in the Surrogate’s Court but, indeed, he virtually assumed there was no room for the exercise of any discretion. When at the close of the trial he was alerted to the fact that there was a question as to the validity of plaintiff’s appointment, he should have recognized that the Surrogate, with full knowledge of the facts, could have authorized the administratrix to continue these actions. It was, therefore, error to dismiss them. Instead, the trial should have been suspended until such time as plaintiff, or any other person interested, made an appropriate application to the Surrogate’s Court.

The courts below erroneously relied on section 43 of the Surrogate’s Court Act without reference to sections 99-101 of said act, and thus pre-empted the Surrogate of his jurisdiction and discretion in this matter. The Surrogate at all times had valid jurisdiction over the subject matter of decedent’s estate, including the appointment of a legal representative. If he made a mistake in the exercise of his power derived from his jurisdiction over the subject matter, it cannot be collaterally attacked. That jurisdiction, according to section 43, is conclusive in the absence of fraud or collusion ’ ’. This court has previously construed and applied section 43 in Lapiedra v. American Sur. Co. (247 N. Y. 25) and Hoes v. New York, N. H. & H. R. R. Co. (173 N. Y. 435), where the type of fraud or collusion which permitted collateral attack of the Surrogate’s decree was of the kind which went to the very essence of its jurisdiction over the subject matter. In the instant case, plaintiff, in her petition to the Surrogate, misrepresented — however innocently — a material fact. However, that misrepresentation or constructive fraud did not go to the essence of the Surrogate’s jurisdiction over the subject matter, for the Legislature empowered the Surrogate, notwithstanding that misrepresentation, to retain plaintiff as administratrix, within his discretion, under subdivisions 1 and 4 of section 99, and section 101 of the Surrogate’s Court Act.

In addition to the foregoing, a suspension, rather than a dismissal, of this lawsuit is dictated by the intrinsic character of the action here involved and by Federal precedent in related situations under the F.E.L.A. It is clear that if plaintiff is not the lawful widow of decedent she could not share in any future recovery as a beneficiary under the Federal statute. A dismissal of these actions would consequently not prejudice her individually in any respect. It would, however, if the limitation period barred future actions, prejudice the rights of the ultimate beneficiaries and promote a windfall for defendant railroad. A suspension of these actions, however, pending action by the Surrogate’s Court — which may be the retention of plaintiff as administratrix or the appointment of a new administrator who could be substituted as party plaintiff in these suspended actions —within a reasonable time, would preserve the rights of the ultimate beneficiaries since these actions were timely brought in the first instance.

The Supreme Court of the United States has by its decisions approved substitution of a legal representative as the proper party plaintiff even after the limitation period prescribed by the F.E.L.A., thus preserving timely brought actions (see St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156, and its subsequent history, 160 S. W. 317 [Tex.], 171 S. W. 512 [Tex.], affd. 243 U. S. 630; Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570 [referred to with approval in Van der Stegen v. Neuss, Heslein & Co., 270 N. Y. 55, 62-63]; see, also, Seaboard Air Line v. Renn, 241 U. S. 290, 293; Olsen v. United States Nav. Co., 20 Misc 2d 14).

We have utilized the procedure of suspension in order to prevent abatement of actions where the plaintiff had died during the pendency of the action (see Angelo v. Angelo, 282 App. Div. 981). This policy against abatement, articulated in Angelo (supra) also finds expression in sections 88 and 90 of the Civil Practice Act.

Accordingly, the courts below were in error in dismissing these actions and thus disposing of the rights of beneficiaries, who were not before the court. The judgment appealed from should be reversed, with costs, and the matter remitted to the Supreme Court for further proceedings not inconsistent with this opinion. Insofar as plaintiff seeks to appeal from the order of the Appellate Division affirming Trial Term’s denial of the motion to vacate, so much of the appeal is dismissed for lack of finality and the failure of the Appellate Division to certify a specific question.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and. Burke concur.

Judgment reversed, with costs in all courts, and the matter remitted to the Supreme Court, Albany County, for further proceedings not inconsistent with the opinion herein. Appeal from the order insofar as it affirms the denial of the motion to vacate dismissed.


source: Caselaw Access Project

author: Chief Judge Conway. Van Voouhis, J.

license: Public Domain

text:
    Joseph C. Flores, Respondent, v. Mosler Safe Company, Appellant.
    Argued October 13, 1959;
    decided December 30, 1959.

      Alexander Pfeiffer for appellant.
    The second cause of action pleaded in the complaint, alleging violation of respondent’s right of privacy, fails to state facts sufficient to constitute a cause of action under sections 50 and 51 of the Civil Rights Law in that a merely incidental mention of respondent’s name was contained in a news report, and that use of the name was unrelated to the advertising of any product or business of appellant. (Gautier v. Pro-Football, 278 App. Div. 431, 304 N. Y. 354; Wallach v. Bacharach, 192 Misc. 979, 274 App. Div. 919; Damron v. Doubleday, Doran & Co., 133 Misc. 302, 226 App. Div. 796; Stillman v. Paramount Pictures Corp., 1 Misc 2d 108, 2 A D 2d 18, 5 N Y 2d 994; Merle v. Sociological Research

      Film Corp., 166 App. Div. 376; Lahiri v. Daily Mirror, 162 Misc. 776; Blumenthal v. Pictures Classics, 235 App. Div. 570, 261 N. Y. 504; Binns v. Vitagraph Co., 210 N. Y. 51; Martin v. New Metropolitan Fiction, 139 Misc. 290, 234 App. Div. 904, 237 App. Div. 863.)

      John J. O’Malley for respondent.
    The complaint states facts sufficient to constitute a cause of action against defendant under sections 50 and 51 of the Civil Rights Law. (d’Altomonte v. New York Herald Co., 154 App. Div. 453, 208 N. Y. 596; Binns v. Vitagraph Co., 147 App. Div. 783, 210 N. Y. 51; Lahiri v. Daily Mirror, 162 Misc. 776; Sutton v. Hearst Corp., 277 App. Div. 155, 277 App. Div. 873; Thompson v. Close-up, Inc., 197 Misc. 921, 277 App. Div. 848; Garner v. Triangle Pubs., 97 F. Supp. 546; Gautier v. Pro-Football, 278 App. Div. 431, 304 N. Y. 354; Wallach v. Bacharach, 192 Misc. 979, 274 App. Div. 919; Damron v. Doubleday, Doran & Co., 133 Misc. 302, 226 App. Div. 796; Stillman v. Paramount Pictures Corp., 1 Misc 2d 108, 2 A D 2d 18; Merle v. Sociological Research Film Corp., 166 App. Div. 376; Blumenthal v. Picture Classics, 235 App. Div. 570, 261 N. Y. 504.)
   Chief Judge Conway.

This is an action for damages based upon the right of privacy created by section 51 of the Civil Rights Law. This section provides, insofar as pertinent to this action, that: Any person whose name, portrait or picture is used * * * for advertising purposes or for the purposes of trade without the written consent * * * may maintain an equitable action * s * against * * * the * * * corporation so using his name # * * to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name * * * in such a manner as is forbidden * * * the jury, in its discretion, may award exemplary damages.”

The courts below have denied defendant’s motion to dismiss the plaintiff’s second cause of action for legal insufficiency. That cause of action alleges that defendant is engaged in the business of manufacturing and selling safes and vaults in New York and elsewhere; and that the defendant knowingly used plaintiff’s name for advertising purposes without having obtained his prior consent in that the defendant printed, produced and widely distributed, by the mails and otherwise, throughout New York State a certain advertisement for its products in which his name was illegally used.

The advertisement consists of a reprint of a news photo and the accompanying captions and news account as they originally appeared in The New York Times and appended thereto, below the original photo, captions and news account, is defendant’s advertising copy. The photograph is a rather spectacular and eye-catching picture of a burning building. The news report of the fire, which consists of a total of 47 lines spread over three columns below the picture and its caption, sets forth an account of two men. One of these men was plaintiff Flores, a business guest of the second man, who was a lessee of the property. Flores was returning consigned merchandise to the lessee at the time the fire broke out. The lessee dropped his keys and, there being no illumination, both men started lighting matches to aid them in the search for the keys. The account further sets forth that one of the matches ignited nylon netting and thus started the fire which spread rapidly through four floors of the building. Mr. Flores’ name is mentioned three times, his address in upstate New York once and his occupation (motel keeper) once in the course of the 47-line news account of the fire and its origin. The appended advertising copy, which urges readers to protect their business records from destruction by fire by the use of one of defendant’s safes, consists of 11 lines of different face type extending across the width of the three columns and occupies approximately one quarter of the face of the circular. Nowhere in the circular is there any indication that plaintiff in any way indorses defendant’s products nor is it alleged that plaintiff is a person whose name would attract greater attention to the advertising copy.

There can be no doubt but that the circular, taken in its entirety, was distributed as a solicitation for patronage. The question before us, then, is whether the manner in which plaintiff’s name was used therein comes within the prohibition of the statute as a use for advertising purposes. Defendant predicates its appeal on the theory that the use of plaintiff’s name was merely an incidental mentioning of his name in a news report, that it was completely unrelated to the advertiser’s products although in physical juxtaposition to the advertising matter, and that such a use of an individual’s name does not constitute a violation of the statutory prohibition.

In this State, the right of privacy or the right of a person to live his life quietly and to be left alone rests solely in and is limited by statute (Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Civil Rights Law, §§ 50, 51). Equity and the common law protected only property rights. The only remedies for mental anguish caused by one individual to another were found in instances of libel, slander and malicious prosecution. Towards the end of the last century it was suggested in a scholarly article that the time had come for the common law to expand with the changes in our way of life and to meet new conditions by a recognition of a right of ‘ ‘ inviolate personality ’ ’ and to protect the sentiments, thoughts and feelings of individuals (Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 [1890]). The first real attempt to establish these principles in this State took place in Roberson v. Rochester Folding Box Co. (supra). Recovery was denied (by a four to three division of this court) to a young woman whose photograph had been used in defendant’s advertisements for its flour. The majority opinion stated that the reasons for denial of recovery were that the court could not find any precedent for such a recovery, that it felt that a judicial declaration authorizing such a recovery would open the floodgates to countless litigations, and that, since the existence of a right to privacy had not been asserted prior to 1890, it was within the sphere of the Legislature rather than of the court to recognize and establish such a right. At the very next session of the Legislature, and undoubtedly as a result of this decision, what are now sections 50 and 51 of the Civil Rights Law were enacted. The primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual (Hofstadter, The Development of the Right of Privacy in New York [1954], p. 12). In construing the statutes it should be noted that although it is in part penal (§50 makes a prohibited use a misdemeanor; however, this section has not been invoked by the respondent and is not involved herein), the purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation (Lahiri v. Daily Mirror, 162 Misc. 776, 779). Justice Shientag, in Ms opinion in the Lahiri case, in establishing a guide in the construction of these sections has said that ‘ A statute of this Mnd is not ‘ to be obeyed grudgingly, by- construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words. ’ It is 1 not an alien intruder in the house of the common law, but a guest to be welcomed * * * as a new and powerful aid in the accomplishment of its appointed task of accommodating the law to social needs.’ ” (Lahiri v. Daily Mirror, supra, p. 779.)

In contending that its motion to dismiss the second cause of action should have been granted, defendant relies upon the cases of Gautier v. Pro-Football (304 N. Y. 354); Wallach v. Bacharach (192 Misc. 979, affd. 274 App. Div. 919); Stillman v. Paramount Pictures Corp. (1 Misc 2d 108 mod. on other grounds 2 A D 2d 18, affd. 5 N Y 2d 994), and Lahiri v. Daily Mirror (162 Misc. 776, supra). Although two of those cases involve lower court decisions which are not binding upon this court, each of these cases is distinguishable from the case at bar.

In the Gautier case (supra) plaintiff was a well-known trainer of animals who presented his act, pursuant to contract, as part of the half-time activities at a professional football game. This act was televised in violation of the contract and was shown in New York. A one minute paid spot commercial had immediately preceded the televising of the act. However, there were no commercials during or immediately after the presentation. We rejected, the plaintiff’s contention that this constituted a violation of his statutory right of privacy, holding that it was a mere coincidence that the commercial, which was one of many presented at appropriate intervals, occurred immediately prior to the presentation of his act and that he was not connected with the product by either visual or other reference. In addition, we placed great stress upon the fact that the plaintiff was a public figure who voluntarily became involved in a special and public event in which the public clearly had a legitimate interest and applied the well-established exception that a public personage or an active participant in a public event cannot invoke the protection afforded by these sections when his name, picture or portrait is used in connection with a truthful recounting or portraying of an actual current event as is commonly done in a single issue of a regular newspaper. (See Binns v. Vitagraph Co., 210 N. Y. 51.) In the ease at hand, however, we are presented not with a simultaneous reporting by a public medium of communication of the actions of a person who has voluntarily entered the public eye, but rather with a deliberate later publication of a no longer current news item in an individual firm’s advertising literature.

In the Wattach case (192 Misc. 979, supra), defendant’s motion for summary judgment dismissing the complaint was granted when the affidavits showed that an entirely independent and unrelated news item relating to the plaintiff had been published on the same page as defendant’s advertising and within space paid for by the defendant. It was apparently conceded that the purpose of such placement was to attract the reader’s attention to the portion of the newspaper in which defendant’s advertising-appeared. The court, in its opinion, said (p. 980): “It cannot be said * * * that it was the intention of the Legislature to prohibit the mention, otherwise lawful, of a person’s name in a commentary or news report unrelated to the advertising of any product or business, merely because such news or com men - tary appears in paid advertising- space and in physical juxtaposition to advertising matter.” (Italics supplied.) The distinction is twofold. In the Wattach case the news item was current and presumably would have been published in the newspaper on that day in any event, whereas in this case there was a republication in the form of an advertising circular of a stale or outdated news item that was no longer a matter of general public interest or concern. Secondly, in the case at hand the commentary is not unrelated to the defendant’s products, but rather is directly related thereto and this relationship was undoubtedly the reason for selecting this particular picture and commentary to illustrate defendant’s circular.

Lahiri v. Daily Mirror (supra) was an action for damages under this section by a well-known Hindu musician and entertainer arising out of the use by defendant of a professional-photograph of the plaintiff in conjunction with a “feature story ” exposure that the “ Indian rope trick ” was performed by way of an illusion. The decision was that there was no violation of the privacy statute since such a publication was one of human interest in the ‘ rope trick ’ ’ and that there was no evidence that the photo was used to increase the value of the paper. The latter test was adopted to determine if this was a use “for the purpose of trade” since there was no question that this was not a use for “ advertising purposes ”. Here again we had a use of a photo in connection with an item of general public interest and information in a newspaper and not a republication in a circular designed solely for the purpose of selling its author’s products.

Defendant also looks for support in the case of Damron v. Doubleday, Doran & Co. (133 Misc. 302). It urges that this case points up its proposition that recovery is not justified since this was merely an incidental mentioning of plaintiff’s name in a manner unrelated to the product advertised. In the Damron case, plaintiff alleged as his cause of action that once in a novel of 398 pages the name “Little Wayne Damron ”, a name by which plaintiff allegedly was known, was used and that such use made him appear as one of the characters and as such violated his right of privacy. In dismissing the action, the court said (p. 303): “ The Roberson case indicates the mischief to be suppressed, and the enactment leaves it to the common sense of judges and courts to determine the extent to which it was intended that the remedy shall be applied. The law was not passed with the idea of interfering with the circulation of newspapers or the publication of books within proper limits, and the use of ‘ local color ’ was not outlawed.” The court then went on to dismiss the action on the ground that the use of plaintiff’s name was merely incidental and not one for purposes of advertising or trade. The same line of reasoning was applied in Stillman v. Paramount Pictures Corp. (1 Misc 2d 108, mod. on other grounds 2 A D 2d 18, affd. 5 N Y 2d 994, supra) wherein the name of plaintiff’s well-known gymnasium was used once in the course of a full-length motion picture. The distinctions are obvious.

Defendant contends that there is no violation since there is no implication in the circular that the plaintiff indorses the product and since the plaintiff’s name is mentioned only in the original news account of the fire as reprinted in the circular and not in the advertising material that defendant appended to the original photo, captions and news account. No authorities are cited for the proposition that the nse of the name or photograph must at least imply an indorsement of the product in order for a use in an advertisement to constitute a violation of the statute, and our research has failed to disclose any such authorities. As to the contention that there is no violation of the statute since defendant did not use plaintiff’s name in the appended advertising copy, the fact remains that defendant freely and deliberately chose to adopt and reprint the entire original photograph, captions and the news account which contained plaintiff’s name in its circular. Defendant gives us no reason for so doing, but rather says only that the use was an incidental one, unrelated to the product. Plaintiff, on the other hand, contends that the defendant selected the material of which the advertisement consisted, that it could have cut out all or part of the original newspaper coverage and that it deliberately chose to include the entire coverage in its circular in order to put more realism in the circular and to attract attention thereto. Plaintiff also points out that the use of the picture and captions alone without the news account which contained his name could have conveyed the idea which defendant was apparently trying to put across to its prospective customers, viz., that fires occur frequently, that they are often started by small acts of carelessness and that they could be disastrous to a businessman. We can hardly hold, as a matter of law, that such contention is unsound.

Defendant further argues that this use is not prohibited by the statute since the use of plaintiff’s name would not in any way draw trade to its firm. Such a contention might be valid if the only prohibited use was one for “ purposes of trade ”. However, the statute makes a use for “ advertising purposes ” a separate and distinct violation. A use for advertising purposes has been defined as a use in, or as part of, an advertisement or solicitation for patronage (Lahiri v. Daily Mirror, supra, p. 780).

In view of the fact that defendant chose to reprint the entire original news coverage of the fire, including the entire news account which mentioned plaintiff’s name several times and described how either he or the other person present started the fire by their carelessness or negligence, in a circular designed for the sole purpose of soliciting purchasers for the defendant’s products, and since every fair intendment and inference must be given to the pleading on a motion to dismiss for insufficiency, we do not believe that it can be said that this complaint fails to set forth a use of plaintiff’s name which is a violation of his statutory right of privacy as a matter of law.

The order of the Appellate Division should be affirmed, with costs. The question certified should be answered in the affirmative.

Van Voouhis, J.

(dissenting). The important question to be decided in this case is whether a news event can be utilized in conjunction with advertising — or in novels or short stories, on the stage or on the screen — if to do so involves mention of persons whose names have already been published as having participated in the event. Here appellant manufactures and sells fireproof safes. It wished to bring home to prospective purchasers the danger of destruction of valuable papers by fire. In order to do so, it published a photograph of a well-known Broadway fire, beneath which was reprinted the newspaper article describing the event at the time when the fire occurred. Plaintiff was mentioned in this newspaper article for the reason that merchandise caught fire while he was returning it to the building which burned. All of these facts were in the public domain. The newspaper violated no rights of privacy in publishing the article, nor were rights of privacy infringed by republishing the same facts at a later date (Molony v. Boy Comics Publishers, 277 App. Div. 166). The law is clear that the use of plaintiff’s name and picture in connection with the publication of newsworthy events is not prohibited by sections 50 or 51 of the Civil Rights Law (Gautier v. Pro-Football, 304 N. Y. 354; Humiston v. Universal Film Mfg. Co., 189 App. Div. 467; Lahiri v. Daily Mirror, 162 Misc. 776; Sidis v. F-R Pub. Corp., 113 F. 2d 806, cert, denied 311 U. S. 711). Under this account of the Broadway fire, reproduced in the form in which it had previously appeared in the newspaper, was written in appellant’s advertisement: “ The disastrous fire shown above didn’t happen to you. . . But suppose the next one does? ” The question here is whether the use of this public event, in the public domain, is forbidden for this purpose.

In our judgment these circumstances do not amount to any violation of sections 50 or 51 of the Civil Rights Law. Appellant was not limited in its advertising to warning against the general nature of fire. It was entitled to point up its appeals to the public by calling attention to particular fires in public memory in order to illustrate the danger resulting from fire. People think in terms of specific situations. It was legitimate for appellant to- refer to specific fires and to describe how they occurred, provided that these facts were already in the public domain. Plaintiff became a public character as a participant in this event, by the same token whereby an actor, musician or other personage becomes a public character in his special context (Koussevitsky v. Allen, Towne & Heath, 188 MisC. 479, affd. 272 App. Div. 759). ■ A different construction would produce awkward results. The words “for advertising purposes or for the purposes of trade ” are held to include the use of names in fiction (Binns v. Vitagraph Co., 210 N. Y. 51; Lahiri v. Daily Mirror, supra, and cases cited). Would the author of a war novel, for example, be prohibited from mentioning the names of Generals Eisenhower or MacArthur in connection with military campaigns or battles that actually occurred, merely for the reason that those public events had a story woven around them? If sections 50 and 51 of the Civil Bights Law had then been in force, would they have prevented Thackeray from publishing Vanity Fair in New York State because the novel dealt with the Battle of Waterloo, if Napoleon or the Duke of Wellington had been alive? Such a legal theory would render any historical novel an impossibility if it concerned recent events. The courts have drawn no distinction between fictionalizing a character and using the name for other purposes of trade or for advertising. If it is prohibited to use an actual public event and the names of persons involved in it to advertise fireproof safes, it is equally prohibited in books, movies, radio or television to mention the names of real persons in fiction even if they are referred to only in connection with what they actually did. It is one thing to introduce real people into fictional episodes. That is prohibited. It is something else to introduce actual historical events into a story, or to build the story around such events. That is not prohibited unless the real people are made to take part in imaginary events. If a prominent banker is held up and robbed, and the incident gets into the news, I perceive no infringement of any right of privacy for a detective agency or a burglar alarm company to advertise that if their services or equipment had been employed the robbery would not have occurred. Many other illustrations can readily be imagined. This kind of advertising seems to me to be particularly legitimate in that (if truthful) it directs attention to the purpose of the goods offered for sale by designating their application to particular situations which are already in the public domain. There is no essential distinction, it seems to me, between doing this and an ordinary newscast sponsored by some advertiser. People whose names are in the news have no right to object (Wallach v. Bacharach, 192 Misc. 979, affd. 274 App. Div. 919). This is not a situation where particular individuals are advertised as sponsoring the product or where their names or pictures are merely published in connection with an advertisement rather than as participants in some public event to which the advertisement relates.

The order appealed from should be reversed and the complaint dismissed.

Judges Desmond, Fuld, Froessel and Burke concur with Chief Judge Conway ; Judge Van Voorhis dissents in an opinion in which Judge Dye concurs.

Order affirmed, etc.


author: Froessel, J. Dye, J.

text:
    Robert E. Hinchey, as Administrator of the Estate of John Venturini, Deceased, Respondent, v. Orville E. Sellers et al., Appellants. Regis J. Petell et al., as Administrators of the Estate of Douglass P. Petell, Deceased, Respondents, v. Orville E. Sellers et al., Appellants.
    Argued October 7, 1959;
    decided December 30, 1959.

      Sidney B. Coulter for appellants.
    I. The Appellate Division’s opinion improperly stated the problem here and as a result did not give proper effect to the doctrine of collateral estoppel. (Evergreens v. Commissioner of Internal Revenue, 141 F. 2d 927, 323 U. S. 720; Hyman v. Regenstein, 258 F. 2d 502.) II. The doctrine of collateral estoppel properly applies here to make the findings of fact in the New Hampshire action conclusive in these New York actions. (Partmar Corp. v. Paramount Cory., 347 U. S. 89; United States v. Silliman, 167 F. 2d 607, 335 U. S. 825; Israel v. Wood Dolson Co., 1 N Y 2d 116; Commissioners of State Ins. Fund. v. Low, 3 N Y 2d 590; King v. Chase. 15 N. H. 9; Montville v. Hamblin, 98 N. H. 356; Peoyle ex rel. McCanliss v. McCanliss, 255 N. Y. 456.) III. Under New Hampshire law, the ultimate facts as to permission determined in the first action would be conclusive in these second actions if they were in New Hampshire. (Morin v. Travelers Ins. Co., 85 N. H. 471; Emyloyers’ Liab. Assur. Corp. v. Tibbetts, 96 N. H. 296; Laconia Nat. Bank v. Lavallee, 99 N. H. 353.) IV. The doctrine of collateral estoppel, as applied in New York, makes the findings of the New Hampshire court conclusive here. (Parker v. Hoefer, 2 N Y 2d 612; Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671, 243 App. Div. 325, 267 N. Y. 609; Israel v. Wood Dolson Co., 1 N Y 2d 116; Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14; United Mut. Fire Ins. Co. v. Saeli, 272 App. Div. 951; Abrams v. Maryland Cas. Co., 278 App. Div. 951, 303 N. Y. 698; Thirty Pines v. Bersaw, 92 N. H. 69; Hosinger & Bode v. Eleven Franklin Place, 268 App. Div. 197, 294 N. Y. 790; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Statter v. Statter, 2 N Y 2d 668.) V. The New Hampshire findings cover all the facts concerning permission which could be again tried in the New York actions. (King v. Chase, 15 N. H. 9; Ripley v. Storer, 309 N. Y. 506.) VI. The facts, as already determined, establish as a matter of law that the use and operation of the car were not with Sellers’ permission within the meaning of the New York Vehicle and Traffic Law. (Psota v. Long Is. R. R. Co., 246 N. Y. 388; Arcara v. Moresse, 258 N. Y. 211; Billy v. Zajac, 7 A D 2d 729, 7 A D 2d 929.)

      Hilbert I. Greene for respondents.
    I. The New Hampshire court did not pass on the issues in these cases at bar. (Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671, 243 App. Div. 325, 267 N. Y. 609.) II. Collateral estoppel does not apply to evidentiary facts in the case at bar. III. Plaintiffs should be heard on the merits of the case.
   Froessel, J.

Plaintiffs administrators brought two separate actions in the Supreme Court, Onondaga County, to recover damages for the wrongful deaths of their respective intestates, John Venturini and Douglass P. Petell. Petell and Venturini were passengers in an automobile driven by one Michael A. O’Rourke, a resident of New Hampshire, and were killed when the car went off the road near Sennett, New York, about 3:30 a.m. on the morning of September 7, 1951. It is conceded for purposes of this appeal that the car was jointly owned by defendants Orville E. Sellers, a resident of Pennsylvania, and his son, Donald E. Sellers, and neither defendant was in the car at the time of the accident. The father had given the car to his son to take with him to Sampson Air Force Base near Geneva, New York, where Donald was stationed as a member of the U. ¡3. Air Force. A public liability insurance policy covering the car had been issued in the State of Pennsylvania by National Surety Company, which policy contained the usual omnibus clause insuring, in addition to the named insured, any person using the automobile “ with his permission ”.

Prior to the commencement of the instant actions, the present plaintiffs had instituted actions against O’Rourke in New Hampshire, but the insurer refused to defend the actions on the ground that O’Rourke was not operating the car with the permission of the named insured. In accordance with New Hampshire procedure, plaintiffs then brought a declaratory judgment action against O’Rourke and National Surety Company, seeking a declaration that it was the duty of the insurer to defend the actions. After hearing testimony by defendant Donald Sellers and two other witnesses, and reading the deposition of O’Rourke, the New Hampshire Superior Court adopted elaborate formal findings of fact, setting forth the substance of the evidence and its conclusions therefrom in great detail. The court found that “ On the afternoon of September 6, 1951, Petell asked Donald Sellers if he could borrow his ear and upon Sellers inquiring who was going with him he informed him that O’Rourke was going, whereupon Sellers informed him he would not lend him the car if 0 ’Rourke was going with him in view of O’Rourke’s restriction. Some time later, Sellers and two other air force flight instructors, Philip B. Kennicutt and Robert M. Danek, were in the room of Kennicutt on the first floor of Barracks H43, where O’Rourke also had a room on the first floor and Sellers and Danek had a room on the second floor. The plaintiff decedent, John P. Venturini, came into the room bringing a note from Petell asking again for the loan of the car. Sellers refused the loan of the car again upon being told that O’Rourke was going with Petell. Shortly after that, Venturini returned again and informed Sellers that O’Rourke was not going but another man by the name of Tempo would accompany them in O’Rourke’s place. They had previously informed Sellers that they were going to the State Fair at Syracuse. Sellers gave the keys to Venturini to give to Petell thereby giving permission to Petell to take the car accompanied by Venturini and Tempo.” The court further found that O’Rourke, and not Tempo, accompanied Petell and Venturini in the Sellers automobile, and that at the time of the accident O’Rourke was driving the car.

After making its formal findings of fact, the Superior Court transferred the questions of law involved in the case to the Supreme Court of New Hampshire without ruling on them. In answer to the certified questions, the Supreme Court held, insofar as pertinent, that the question of coverage under the policy was governed by Pennsylvania and not New York law since the policy had been issued in Pennsylvania, and that the actual use of the automobile at the time of the accident was not with the insured’s permission “within the interpretation put upon that language by the laws of Pennsylvania ”. The ground for the latter holding was that “ The particular use to which the car was being put, insofar as it was being driven by 0 ’Rourke and used for his transportation, was neither actually nor impliedly within the limits of the permission granted by Sellers to Petell. Unlike the situation in Arcara v. Moresse, 258 N. Y. 211, where the thing forbidden related to the operation of the vehicle, the limitation upon the permission given in this case was that the car should not he used at all if O’Rourke was a passenger. ” (99 N. H. 378-379; emphasis supplied.)

A final judgment was accordingly granted, declaring that, since there was no permission within the meaning of the policy, the insurer was not obligated to defend the actions against O ’Rourke. The actions against 0 ’Rourke were then voluntarily discontinued. After the New Hampshire trial court made its findings of fact, plaintiffs commenced the instant actions in New York against Orville and Donald Sellers as co-owners of the automobile. The complaint in each action alleged that the automobile was being operated at the time of the accident “with the permission, express or implied”, of the defendants. The answer pleaded as an affirmative defense that the final judgment in the New Hampshire declaratory judgment action was a conclusive determination of the issue of permissive use, and a complete record of the New Hampshire proceedings was annexed to the answer. Defendants moved for summary judgment, and Special Term granted the motion on the ground “ that the judgments in New Hampshire are conclusive and bar recovery by plaintiffs in New York ”, Although the Appellate Division conceded'that “ In view of the relationship of indemnitor and indemnitee "between the insurance company and the defendants, the prior judgment in favor of the insurance company may be used defensively by the defendants (Israel v. Wood Dolson Co., 1 N Y 2d 116; Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14) ” (5 A D 2d 446), it reversed on two grounds: (1) The issue of permission under the insurance policy — which was determined “asa matter of contract law in accordance with the intention of the parties to the contract under the law governing the contract ” — was different from the issue of permission under section 59 of the New York Vehicle and Traffic Law, which latter issue ‘ must be determined in accordance with the intent of the Legislature, taking into account the policy objectives which the Legislature sought to carry out (2) Under the law of New Hampshire, which was found to be the same as the law of New York, the doctrine of collateral estoppel ‘ ‘ is not applicable to evidentiary findings made in a prior action involving a different ultimate issue

While we agree with the Appellate Division that the ultimate legal issue involved in the instant case is not the same as the ultimate legal issue involved in the New Hampshire action, we disagree with its application of the collateral estoppel doctrine. It was found as the fact in the New Hampshire action that “ the limitation upon the permission given in this cage was that the car should not be used at all if O’Rourke was a passenger ”. This was not a fragmentary finding of an evidentiary fact, as the Appellate Division implied, but was a finding essential to the judgment, from which the resolution of the ultimate legal issue necessarily followed. It is perfectly clear from the record of the New Hampshire proceedings that the quoted factual finding was a necessary step in arriving at the final judgment, and, as Judge Learned Hand noted in Evergreens v. Nuna (141 F. 2d 927, 928, cert, denied 323 U. S. 720), “ It is of course well settled law that a fact, once decided in an earlier suit, is conclusively established between the parties [or their privies] in any later suit, provided it was necessary to the result in the first suit.” (See, also, People ex rel. McCanliss v. McCanliss, 255 N. Y. 456, 459-460.)

The resolution of the ultimate legal issue in the instant actions also necessarily follows from the quoted factual finding of the New Hampshire courts since, if the limitation upon the permission given was that the car should not be used at all if 0 ’Rourke was a passenger, there can be no recovery by plaintiffs under section 59 of the Vehicle and Traffic Law (Arcara v. Moresse, 258 N. Y. 211; Psota v. Long Is. R. R. Co., 246 N. Y. 388). In other words, in order to succeed in these actions, plaintiffs would have to prove that the scope of the permission granted included the presence of O’Rourke as a passenger. They had a full opportunity to prove ” that fact “ in a court of competent jurisdiction ”, and, since the court found otherwise, plaintiffs “ may not relitigate that issue ” (Israel v. Wood Dolson Co., 1 N Y 2d 116, 120). The operative facts relating to permission ” are exactly the same in these actions as they were in the New Hampshire action and, since plaintiffs had a full and complete opportunity to be heard on these facts in New Hampshire, they should not be permitted to relitigate them in New York simply because the legal issue of permission here appears in the context of a New York statute rather than in a Pennsylvania insurance policy. The doctrine of collateral estoppel ‘ ‘ is essentially a rule of justice and fairness ”, and the essence of the rule is ‘ ‘ that a question once tried out should not be relitigated between the same parties or their privies ” (Commissioners of State Ins. Fund v. Low, 3 N Y 2d 590, 595).

While the decision in Fox v. Employers’ Liab. Assur. Corp. (239 App. Div.,671) (the only one of three related cases involving the same subject matter which was not appealed to this court) seems to support the position adopted by the Appellate Division here, we feel that that case was wrongly decided. In the first Fox case (231 App. Div. 273, affd. 258 N. Y. 550), the situation was the reverse of that presented here, i.e., the first action was against the owner of the car under section 59 and the second action against the' insurance company under the policy. Plaintiffs recovered a judgment in the trial court against the City of Syracuse and one Green, a city employee, for injuries received •in the negligent operation of a city automobilé by Green. On appeal by the city, whose defense had been conducted by counsel for its insurance company, the judgment against it was reversed on the ground that Green was using the car for his own purposes at the time of the accident, and not on city business, and that the city, a municipal corporation, was legally incapable of consenting to the use of the ear for pleasure purposes so as to subject it to liability under section 59.

After an execution issued against Green was returned wholly unsatisfied, plaintiffs commenced an action against the city’s insurance company to recover under the policy, and the latter pleaded the prior judgment as res judicata. This defense was sustained by the trial court but overruled by the Appellate Division on the ground that the issue of ‘ ‘ permission ’ ’ under section 59 was not the same as the issue of “ permission ” under the policy. While we agree with this conclusion as to the non-identity of the ultimate legal issues, the Appellate Division erroneously noted: “ Nor was there privity or any other relationship there which estops plaintiffs here ” (239 App. Div., supra, p. 675).

On the subsequent trial of the action, plaintiffs recovered judgments against the company, but these were reversed on appeal on the ground that plaintiffs had failed to prove that Green was legally operating the car in the business of the city, with its express or implied consent — a prerequisite to recovery under the policy (243 App. Div. 325,-affd. 267 N. Y. 609).

In the instant case, the Appellate Division correctly held that by virtue of the indemnitor-indemnitee relationship existing between an insurer and an insured, defendant here (the insured) was in privity with the defendant in the New Hampshire action (the insurer) for purposes of the collateral estoppel doctrine. The Appellate Division erred in the Fox case in not according collateral estoppel effect to the finding that Green was using the car for purposes to which the city could not, in law, consent. The finding that the city employee was using the car for pleasure purposes at the time of the accident was essential to the judgment exonerating the city from liability under section 59 and, if the named insured was incapable of consenting to the use of the car for these purposes, the insurer could not be liable under the policy. We recognized this, in effect, in affirming the subsequent judgment for the insurance company, and hence we do not regard the Fox case as authority for denying collateral estoppel effect to the necessary factual finding made in the New Hampshire proceeding.

As to the conflict-of-laws question involved in this case, the Appellate Division, citing Johnson v. Muelberger (340 U. S. 581), held that the law of New Hampshire, rather than the laiv of New York, is controlling as to the effect to be given the evidentiary findings underlying the New Hampshire judgment ’ Since the issue of permission under the insurance policy, as determined under Pennsylvania law, is not the same as the issue of permission under section 59 of the Vehicle and Traffic Law, no adjudication by the courts of New York on the latter issue could impair the force of the New Hampshire judgment on thé former issue. Hence a choice of New Hampshire law would not appear to be mandated by the Pull Faith and Credit Clause of the Federal Constitution. It should also be noted that the accident occurred in New York, and since the liability of the insurer is, by force of our statute (Vehicle and Traffic Law, § 59), deemed coextensive with the liability of the insured owner to third persons for injuries caused by those operating the vehicle with the said insured’s permission, the ultimate liability of the insurer depends upon a construction of New York law.

In any event, the relevant New Hampshire cases seem to be in accord with the general rule that where an issue of fact essential to the judgment is actually litigated and determined by a valid final judgment, the determination is conclusive between the parties and their privies (King v. Chase, 15 N. H. 9; Laconia Nat. Bank v. Lavallee, 96 N. H. 353; see, also, Morin v. Travelers Ins. Co., 85 N. H. 471; Employers’ Liab. Assur. Corp. v. Tibbetts, 96 N. H. 296).

The orders appealed from should be reversed, and the judgments of Special Term reinstated, with costs. The question certified in each case should be answered in the affirmative.

Dye, J.

(dissenting). I find myself unablé to agree with the decision about to be made.

These actions for wrongful death grow out of an automobile accident which occurred in New York, allegedly due to the negligence of one O’Rourke in driving the automobile owned by defendants, neither of whom was in the car. The answers set forth the defense of collateral estoppel, inter alia, because of a final judgment rendered in New Hampshire.

Plaintiffs had brought suit in New Hampshire against O’Rourke and National Surety Corporation, the present defendants’ insurer, seeking a declaration (in accordance with that State’s procedure) that O’Rourke was driving the car with the owner’s permission and that the insurer was obligated to defend O’Rourke and stand responsible for any judgment obtained against Mm, on account of the public liability policy, containing the usual omnibus clause, which had been issued to the defendants in Pennsylvania. The New Hampshire court, in a hearing conducted for that purpose, held that under the controlling law there was no “ permission ” within the meaning of the policy, and thus the insurer was not required to defend the action.

The New Hampshire actions against O’Rourke were voluntarily discontinued, and the present actions subsequently were tried on the theory of imputed negligence, pursuant to section 59 of the Vehicle and Traffic Law. Thus, permission, express or implied ” is in issue here.

On the issue of permission, the testimony establishes that defendants are father and son, the former a resident of Johns-town, Pennsylvania, and the latter at the time in question a serviceman stationed at Sampson Air Force Base, Geneva, New York. The son had refused to lend his automobile to a fellow airman because O’Rourke, who was to ride in the car, was restricted to base, and the defendant son wanted nothing to do with a deliberate violation of restriction. After twice refusing to lend the car, he finally consented on the assurance that O’Rourke would be left behind. The accident occurred while the car was out on loan, and when O’Rourke, who was not left behind, was not only in the car but behind the wheel..

In these actions the defendant owners contend that the plaintiffs are concluded by the New Hampshire judgment on two main grounds — the first being that the issues in the two actions are the same, thus giving rise to collateral estoppel.

Although each action depends on “ permission, express or implied ”, the issues are not the same. In New Hampshire, the insurance company’s responsibility for any judgment obtained against O’Rourke, the driver, hinged on the issue of owner-consent within the meaning of the insurance contract, which was ascertained by resort to a reading of the contract in the light of Pennsylvania law. In New York, on the other hand, every owner of a motor vehicle operated upon a public highway is made liable by statute for injury to person or damage to property of another resulting from negligence in the operation of such motor vehicle in the business of the owner or otherwise by any person legally using or operating the same “ with the permission, express or implied, of such owner” (Vehicle and Traffic Law, § 59). Thus, in New York the meaning of permission ” imputing the driver’s negligence to the owner is a matter of legislative intent.

The doctrine of collateral estoppel then, in its traditional sense, has no application to this controversy, since it would not here serve the policy against relitigating’ issues already adjudicated (Jewtraw v. Hartford Acc. & Ind. Co., 2 N Y 2d 788; Fox v. Employers’ Liab. Assur. Corp., 239 App. Div. 671).

The second point to consider is the argument that, since the operative facts essential to decision in both actions are identical, the application of collateral estoppel is justified, owing to the increased probability that the issues here to be decided were conclusively determined by the first judgment.

The ultimate fact which had to be pleaded in New Hampshire was the existence of permission under the insurance contract. The ultimate fact which needs to be proved in the New York action is the existence of permission under section 59 of the Vehicle and Traffic Law. The two are not the same, for the one is determined by the parties ’ intent as manifested by the terms of the contract, while the other depends on legislative intention. The difference is apparent even though the results in both actions might be the same because neither kind of permission may have been given.

In short, the New Hampshire courts did not find as a fact that O’Rourke was driving without the sort of permission which, if found, would have rendered the owner liable under section 59.

Appellants thus ask us to give res judicata effect to the evidentiary findings made in the prior action, by accepting the facts found as binding on us and then applying different legal principles to them to determine that the fact of permission under section 59 has been concluded. But to fashion a rule that requires us to examine a set of operative facts from which the ultimate fact has already been drawn by a legitimate trier of the facts, and then attempt to determine whether or not as a matter of law another ultimate fact ought to be drawn from those facts, is to sacrifice our notion of fact-determination for an uncertain rule of unpredictable application.

Nor am I able to find that the two kinds of permission herein involved enjoy the same legal meaning because of the public policy underlying their use, there being no basis for saying that our concept of owner-liability under section 59 equates with another State’s concept of insurer-liability under the standard omnibus clause.

Since the law of New Hampshire is in agreement with my view of the limits of the collateral estoppel doctrine (King v. Chase, 15 N. H. 9; Laconia Nat. Bank v. Lavallee, 96 N. H. 353) the conflict-of-laws point does not give me concern.

For these reasons I vote to affirm the orders of the Appellate Division, with costs, and to answer the questions certified in the negative.

Chief Judge Conway and Judges Desmond, Fuld, Van Voorhis and Burke concur with Judge Froessel; Judge Dye dissents in an opinion.

In each action: Order of the Appellate Division reversed, with costs in this court and in the Appellate Division, and the judgment of Special Term reinstated. Question certified answered in the affirmative.