
    Benjamin Wright, App’lt, v. David Miller et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Res adjudicata.
    Plaintiff was trustee of an estate, and advanced money to one of the heirs. In an action of partition he asked that these sums he paid out of the share of such heir in the proceeds of sale, which claim was disputed and decided against him. He then brought this action to charge the amount advanced upon his share of the proceeds of sale in the referee’s hands, and testified to an agreement by said heir that it shoidd be so charged. Held, that the decision in the partition action was final, and that the addition of the promise did not change the rule.
    Appeal from judgment dismissing the complaint
    
      D. Edgar Anthony, for app’lt; F. P. Bellamy, for resp’t, D. Miller; Samuel Keeler, for resp’ts, Ezra Miller et al.
    
   Barnard, P. J.

The plaintiff was a trustee under the last will and testament of Elizabeth Ann Wright. The trust ceased in 1871, upon the death of Hannah E. Byerson, and the land included in the trust became vested in the heirs-at-law of Hannah E. Byerson. Charles E. Miller was one of these heirs. The plaintiff continued to collect the rents. In 1876, Charles E. Miller, who owned one-third of the property, sold to his son his interest, reserving a life estate therein to himself. Charles E. Miller died in 1884. Before his death there was pending a partition action, and after his death all his heirs-at-law were brought in. The original complaint contained an averment that the plaintiff had advanced to Charles E. Miller, in his lifetime, two sums of money,•$!4.35 and $50, and the plaintiff asked that these amounts should be paid out of the share of Charles E. Miller in the proceeds of sale. This claim was disputed, tried and decided against the plaintiff. He then instituted this action to charge the amount so advanced upon the proceeds of sale in the referee’s hands, and after proving the advancement and giving proof tending to show that there was an agreement to so charge the same made .by Charles E. Miller in his lifetime, the complaint was dismissed upon the ground that the question had been finally settled in the partition action. The partition action made no averment of a special agreement to charge the share with the advance. The present action does. The decision in the partition action is final. It refers to the same items. It sought to charge the share in the land in one case and the money, the proceeds of the sale of the land, in the present case. The plaintiff made his own issue in the partition action and was defeated. The addition of the promise in the second action does not change the rule. The promise, if there was one, was involved in the issue in the partition action, and if it was not actually litigated, it might have been.

The decision dismissing the complaint is supported by the authorities. Pray v. Hegeman, 98 N. Y., 351; Campbell Printing Press & Mfg. Co. v. Walker, 114 id., 7; 22 St. Rep., 173.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  