¶1The Trial Judge obviously considered both drivers negligent. Therefore, Ms rulings, concurred in by all parties in Actions No. 1 (at least by the insurance company) and No. 3, follow that view. He also did the best he could with an unresponsive jury. Nonetheless, the substantive rights involved in Action No. 2 between the injured driver held liable by the jury in Action No. 1, and the owner held liable by the jury in Action No. 3 (plus the driver), must be adjudicated in a new trial, because the jury applied its own theory of the law, which cannot be used as the basis of collateral, estoppel.
¶2There was, in reality, no real decision on the merits against Huston. (See Vavolizza v. Krieger, 33 N Y 2d 351.)
¶3Murphy and Capozzoli, JJ., concur with Moore, J.; Kupferman, J. P., concurs in result in an opinion.
¶4Judgment, Supreme Court, New York County, entered on February 4,1972, unanimously reversed, on the law, and vacated, and a new trial directed.. Appellant shall recover of respondents $60 costs and disbursements of this appeal.