
    Mechanics’ Savings Bank, Pl’ff, v. De Villo W. Selye et al., Def’ts. Josephine L. Parker, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    Judgment—Conclusiveness.
    A judgment, in an action against the record owner, that the plaintiff therein is the owner of an undivided half interest in the premises, is entirely unavailing as against a mortgagee, who was not a party to the action and whose mortgage was delivered and recorded prior to the commencement of such action.
    Appeal from an order, confirming the report of a referee in a proceeding to obtain surplus money under a foreclosure sale.
    
      Q. Van Voorhis, for app’lt; H. McGuire, for resp’t.
   Dwight, P. J.

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. The 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 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. Green-leaf 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 Green! Ev. § 522. This case is an apt illustration of the facility with which, if such was not the rule, parties mutually interested to defeat the rights ot a third person might accomplish that object by means of a collusive action to which the third person was not made a party. No 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 referee 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.  