
    Julia Boylan, Appellant, v. Mary George and Others, Respondents.
    Third Department,
    June 24, 1909.
    Practice — partition — interlocutory judgment — res adjudicata until reversed.
    An interlocutory judgment in partition directing the sale of lands described in the complaint is res adjudicata until reversed on appeal, and the Special Term on a motion for final judgment after the sale has no power to decide that the plaintiff had no title or estate in the lands.
    Where there has been no appeal from the interlocutory judgment such refusal of the Special Term to grant final judgment is in effect a reversal of the interlocutory^ judgment and beyond the power of the court. The remedy of the defendant, if aggrieved, is by appeal.
    Appeal by the plaintiff, Julia Boylan, from an order of the Supreme Court, made at the Broome Special Term and entered in the. office of the clerk of the county of Madison on the 25th day of August, 1908, denying the plaintiff’s motion for final judgment.
    
      William F. Santry, for the appellant.
    
      William J. McClusky, for the respondents.
   Cochrane, J. :

This is an action to partition about thirty-two acres of land in the city of Oneida. An answer was interposed alleging, among other things, that the land in question was part of the original Oneida Indian reservation, and could not for that reason be partitioned or sold.

' The issues formed by the pleadings were by stipulation of the parties referred to a referee to hear and determine. After a trial of the issues before the referee, the latter made his report, wherein he found as facts that “ the defendants herein are all descendants of those members of the Oneida Indian tribe who remained in this State after the removal of their said .tribe to the State of Wisconsin. That they mingled with the whites, dealt with the whites, and lived among them. That said parties have no relations with the said Oneida tribe, nor have they for the last forty years maintained or supported any tribal government.”

As legal conclusions the referee found “ that all of the conveyances by or through which the parties to this action hold title to the property in question are valid and legal, and that the parties making the same were, at the time of the making thereof,, legally competent to convey real estate without supervision or restraint. That the plaintiff is entitled to an interlocutory decree of sale of the whole of the premises described in the complaint, and to a division of the proceeds of the said sale among the owners of said property-according to their respective shares and interests as set forth in tliotindings herein.”

On said report interlocutory judgment was entered declaring the rights, shares and interests of the parties in the property as found by said referee, and appointing a referee to sell the property.

Pursuant to such interlocutory judgment the referee sold the property, made his report of sale, and application, for final judgment: was made based thereon. This application was opposed not only by the defendants, but also by the Attorney-General, and was-denied by the court at Special Term on the ground, as stated in the order appealed from, “ that no title to or estate or interest whateveiin the lands sought to be partitioned in this action is or at any time: has been vested in the plaintiff, and that the plaintiff has not and never had the right tó maintain an actipn for the partition of said-lands.”

The' learned court at Special Terra was clearly in error in the practice pursued. Whatever right of protection the defendants may have as against the efforts of the plaintiff to partition the land in question, that right was litigated and decided adversely to them by the referee, and his determination, until reversed on appeal, is conclusive. • The interlocutory judgment based on the report of the referee determined the rights of the parties. (Code Civ. Proc. § 1546.) It was res adjudícala as to the questions raised' on the application for final judgment. The only function of the court on that application was to review the sale made pursuant to the interlocutory judgment, and if found to have been fairly and regularly-conducted,. to confirm the same and to make directions concerning the execution of the proper "conveyances, and the application of» the proceeds of sale. (Code Civ. Proc. § 1577.) The refusal the court to grant final judgment was in effect a reversal of the interlocutory judgment and clearly beyond the power of the court at Special Term. (Ward v. Bronson, 126 App. Div. 508; Albny Brass & Iron Co. v. Hoffman, 30 id. 76; Foley v. Foley, 15 id. 276; Columbia Mutual Building & Loan Assn. v. Mittnacht, 62 id. 425; Kennedy v. McKone, No. 2, 10 id. 97; Manwaring v. Lippincott, 34 Misc. Rep. 123.) All questions involved herein, including the question of jurisdiction, have been determined adversely to the defendants, and, if aggrieved, their remedy is by an appeal in the manner provided by law.

The order must be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term.  