Mechanics' Sav. Bank v. Selye — 31 N.Y.S. 921

Majority

p. 921

MECHANICS’ SAV. BANK v. SELYE et al.

(Supreme Court, General Term, Fifth Department.

December 27, 1894.)

Headnote

Judgment—Res Judicata—Parties.

Judgment that plaintiff in the action is the owner of an undivided one-half of certain premises does not affect the right of a mortgagee, who was not made a party to the action, though its mortgage was recorded before the action was brought.

Appeal from special term, Monroe county.

Action by the Mechanics’ Savings Bank against De Villo W. Selye and others. Prom an order confirming the report of a referee in proceeding to obtain surplus money arising under a sale of foreclosure, Josephine L. Parker appeals.

Affirmed.

p. 922

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BEADLEY, JJ.

Q. Van VoorMs, for appellant.

H. McGuire, for respondent.

The Central Bank claimed the whole of the surplus moneys by virtue of a mortgage next subsequent to that which was foreclosed in the action. Mrs. Parker’s claim was based upon an alleged equitable title to an undivided half of the mortgaged premises. This title was evidenced by a judgment against Selye in an action by Mrs. Parker, to which the Central Bank was not made a party,—although its mortgage had been duly recorded nearly two-years before the action was commenced,—by which, notwithstanding the apparent legal title in Selye to the whole of the mortgaged premises, it was adjudged that Mrs. Parker was the owner of an undivided one-half of those premises as tenant in common with him. This proof was no doubt properly made as against Selye, who, as apparent owner of the equity of redemption, would himself have been entitled to the surplus money if no other claim had been established thereto; but of course it was entirely unavailing as against the Central Bank. As to the bank, which was not a party to the action in which it was recovered, the judgment was inter alios, and of no effect whatever. The principle is elementary, and as such is stated by Mr. Greenleaf in these words: “It is a most obvious principle of justice that no man ought to be bound by proceedings to which he-was a stranger.” 1 Greenl. Ev. § 522. This case is an apt illustration of the facility with which, if such were not the rule, parties mutually interested to defeat the rights of a third person might accomplish that object by means of a collusive action to which the-third person was not made a party. Ho other evidence was made-of any title or interest in Mrs. Parker upon which to base her claim-, for the surplus moneys, and, the bank having established its claim as against the mortgagor, the report of the rqferee was properly in-its favor. Other questions were litigated on the hearing, including-the question of the effect of the recording act on the relative equities-of the two claimants to the surplus money, but we do not think it necessary to consider that or any other question in view of the failure of proof to establish any title in Mrs. Parker as against the other-party to that litigation. The order appealed from should be affirmed.. All concur.

So ordered, with $10 costs and disbursements.