
    David M. H. Place, Appellant, v. Eva Rogers and Others, Defendants. Grenville T. Emmett, Referee, Respondent.
    Des ad judicata — an interlocutory judgment in partition directing a sale is conclusive, as to the title thereby adjudged, in an action of ejectment involving such title previously brought but not previously tried — a purchaser at a sale under such interlocutory judgment, pending an appeal therefrom, acquires a good title.
    
    After the commencement of an action in ejectment, one of the defendants in the ejectment action brought an action against his codefendants in such action to partition the premises, making the plaintiff in the ejectment action a party thereto, and alleged in his complaint that the latter had no valid claim or interest in the premises, but that she asserted some claim or interest therein which constituted a cloud on the title. The plaintiff in the ejectment action interposed an answer in the partition action in which she set up her alleged title to the premises and demanded .affirmative relief.
    The partition action proceeded to trial and resulted in an interlocutory judgment declaring that the plaintiff in the ejectment action had no title to the premises. The Appellate Division affirmed the interlocutory judgment and the plaintiff in the ejectment action thereupon appealed therefrom to the Court of Appeals, filing the usual undertaking for costs.
    
      Held, that the court properly denied a motion made by the plaintiff in the partition action for a stay of the sale directed by the interlocutory judgment, the appeal from which was pending in the Court of Appeals, until the determination of the action of ejectment;
    That the title of the plaintiff in the ejectment suit was properly tried and determined in the partition action, and that the adjudication on that question in the partition action was res adjudicata as to the plaintiff in the ejectment action;
    That the force of the adjudication in the partition action was not affected by the fact that tííe latter action was begun subsequent to the action in ejectment;
    That a bona fide purchaser at the partition sale would be protected.
    Hooker, J., dissented.
    
      Appeal by the plaintiff, David M. H. Place, from an order of the-Supreme Court, made át the Kings County Special Term and entered in the office of. the clerk of the county of Westchestér on the 12tli day of October, 19Q4, denying -the plaintiff’s motion for á stay, of the sale directed by an interlocutory judgment theretofore entered in the above-entitled action.
    
      Burton C. Meighan, for the appellant.
    
      Grenville T. Emmett, referee, respondent.
   Jenks, J.:

This appeal is from an order of the Special Term denying a; motion for a stay of sale under an interlocutory judgment in partition, until an action in ejectment be finally determined'. In 1895- and prior to the beginning of the partition suit, Georgiana Kennedy and Catharine Downing (who has since died intestate, whereby heiinterest, if any, is now vested in the said Kennedy) began an actitih, in ejectment from the same premises,' contending that Place, Rogers- and Silleck were in wrongful possession, without title or interest. -Place, Rogers and Silleck appeared and joined issue; asserting' titles That action is at issue and undisposed of. In -1904 the' defendant Place moved to dismiss the complaint because of the plaintiff’s lack of prosecution, ánd because the judgment in this partition suit' had determined the question of title. This motion was denied.

. This partition, suit was brought in 1899- by the said Place against the said Rogers, Silleck and Kennedy, Kennedy, it must bé remembered, being now the sole plaintiff in the pending ejectment suit. Place complained “ that, as' the plaintiff is informed and believes the .defendants, Sarah Silleck,. Georgiana Estelle Kennedy, John Tompkins and William IT. Bnrckhardt, have no valid claim or’intei-est in the said premises, but that they assert some claim or interest thereto, the precise nature of which is. unknown to plaintiff, and that their said claim constitutes a cloud upon the title, to the said premises, and, therefore, they are made parties to this action,” 'and he demanded that judgment “ for ■ a • partition and division of said premises according to the respective rights of the parties aforesaid be rendered; or, in case a partition thereof cannot be made without great prejudice td the owners, that the same may be sold by- and . under the direction of this court, and that the proceeds of the sale, after paying the costs and charges of this action, may be divided among the owners thereof, according to their several rights or interests therein; and to that end that the rights and interests of the parties interested'in the said premises, or in the proceeds of* the sale thereof, may be ascertained and determined by the judgment of this court, and for such further and other relief or judgment as may be just and equitable.” Kennedy in effect pleaded her title,’ and demanded affirmative" relief. Upon such pleadings the case was tried bv jury and a verdict was returned in favor of Place, Rogers and Silleck. ' The interlocutory judgment declared that the title was in them, adjudged that the defendant Kennedy had' no right, title or interest in the premises, and barred her therefrom forever, the judgment to be final and conclusive. Kennedy appealed from the interlocutory judgment, and we unanimously affirmed it. (Place v. Kennedy, 89 App. Div. 167.) She thereupon appealed to the Court of Appeals, filing the usual undertaking of $500.

There is no question that the title pf Kennedy could be tried and determined in the partition suit. (Satterlee v. Kobbe, 173 N. Y. 91; Weston v. Stoddard, 137 id. 119.) That suit went to interlocutory judgment of partition and. sale, which is the decree afforded by the statute, and which shall declare the right, share or interest of each party in the property so far as the same has been ascertained, and must determine the rights of the parties therein. (Code Civ. Proe. § 1546.) As no further decision as to the title is to be made, and no further judgment thereon is to be entered, I think that so far as that question is concerned the successful party may rest upon this interlocutory judgment. (Allie v. Schmitz, 17 Wis. 169.)

The opposing affidavits on the motion made in the ejectment action are' in this record, and it appears therefrom that Kennedy alleges title to the premises because she is the only legitimate heir of David Hains; and such is the title she pleads in the partition action. I am of opinion that the adjudication of title in the partition action is res adj udicata as to Kennedy. (Masten v. Olcott, 101 N. Y. 153, 157; Jenkins v. Fahey, 73 id. 355, 360; Jordan v. Van Epps, 85 id. 427; Doolittle v. Don Maus, 34 Ill. 457; Fleenor v. Driskill, 97 Ind. 27; Hardy v. Beaty, 84 Tex. 562; Cole v. Hall, 2 Hill, 625, 627; Clapp v. Bromagham, 9 Cow. 530, 569; Leavitt v. Wolcott, 95 N. Y. 212; Herm. Estop. [2d ed.] 303, 307; Lahey v. Kortright, 132 N. Y. 450.)

The force of the judgment is not affected by the fact that it was rendered in a suit begun after another action, which likewise involved this same question of title. (Casebeer v. Mowry, 55 Penn. St. 422; Duffy v. Lytle, 5 Watts [Penn.], 120; 2 Black Judg. [2d ed.] §791.) A bona fide purchaser at the sale would be protected. (Code Civ. Proc. § 1323. See, too, Murray v. Berdell, 98 N. Y. 480, 485.)

. The order should be affirmed, with costs.

■ Hirschberg, P. J., Bartlett and Woodward, JJ., concurred-; Hooker, J., dissented.

Order affirmed, with ten dollars costs and disbursements.  