
    Garrit Furman and Julia Furman, his Wife, Respondents, v. William H. Furman and Others, Defendants; Minnie Waldron Furman (now Minnie W. Braun) and Mirabeau L. Towns, Appellants.
    
      Judgment—vacated, because procured by a father in violation of an agreement with his children -r- res ad judicata — costs, when presumed to have been paid — conduct inconsistent with the existence of a judgment.
    
    In 1876, one William H. Furman, who was the life tenant of certain premises, in which his five children were entitled to the estate in remainder, proposed to his children that the premises be partitioned, to which they agreed, provided the property was divided and not sold.
    While the partition suit was pending, one of the remaindermen died, and Minnie W. Furman, now Minnie W. Braun, claiming to'be the lawful issue of the' deceased, was made a party defendant, and was adjudged to be his daughter, and to be entitled to share in-the property.
    Subsequently, upon its being discovered that William H. Furman had, in viola-, tion of his agreement, procured a judgment of sale, the plaintiff G-arrit Furman procured, in 1877, an order to show cause why the judgment should not be vacated and the action-be discontinued.
    The court referred the question of costs, and directed that when they were paid, the judgment should be vacated and the action be discontinued. William H. Furman and Minnie W. Braun, by her guardian ad litem, appealed from this order, which was affirmed upon the appeal.'
    
      In May, 1879, all of the remaindermen, except Minnie W. Braun, consented to an order, which was entered, vacating the judgment. The costs of the guardian ad litem of Minnie W. Braun were not taxed on the former reference, and the court appointed a referee to tax them; and upon the coming in of his report directed that upon their payment the judgment should be vacated and the action be discontinued. It did not appear affirmatively that this allowance had ever been paid, but in 1895 Minnie ~W.. Braun and one Towns, who claimed certain rights under her, brought an action to procure a partition of the same premises.
    Thereafter, the court made a further order directing that the judgment be vacated and the action he discontinued, upon an appeal from which it was Meld, that the court had power to make the order appealed from and to grant relief upon motion, whether the application were treated as in aid of the former order, or as an original application;
    That the original order adjudging that the judgment be vacated and the action he discontinued was res adjudieata, and that upon compliance with its terms all rights established by the judgment, however grave, were wiped out;
    That Minnie W. Braun could not now insist that the judgment must stand, merely and solely because it adjudicated that she was the legitimate daughter of the deceased remainderman and entitled to his share in the property;
    That her conduct in bringing a subsequent action of partition was sufficient to raise the presumption that the costs had been paid, and that she did not consider the former judgment as valid, and that this presumption was strengthened by the fact that the other remaindermen had entered affirmative orders of discontinuance, and by the further fact that the guardian ad litem of Minnie W. Braun had taken no proceeding to obtain his costs;
    That as Towns was not a party to the first action of partition, he was not prejudiced by the order appealed from and was in a position to assert upon a trial any right which he possessed.
    Appeal by Minnie Waldron Furman (now Minnie W. Braun) and Mirabeau L. Towns from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the cleric of the county of Queens on the 1st day of May, 1896, vacating and annulling a judgment and discontinuing the action in which it was entered.
    The order appealed from was made upon the hearing of an order to show cause dated January 13,1896, and made returnable January 15, 1896. , '
    
      Delos McCurdy, Mirabeau L. Towns and Raphael J. Moses, for the appellants.
    
      Henry A. Monfort, for the respondents.
   Hatch, J.:

.The property affected by this order was originally owned by the grandfather of the plaintiff Garrit Furman, who devised a life estate in the same to his son, William FI. Furman, the father of the plaintiff Garrit Furman, with remainder over to his issue. William H. Furman had five children, and each child took ah undivided one-fifth interest in the property, subject to the life estate of William. In 1876 the latter proposed to. the children that the property be partitioned, and this: was assented to upon the understanding that there should be no sale of the. property, but that it should be divided so that each would have his interest immediately available for a favorable market when, a sale could be effected if the parties so desired-. Confidence was reposed in the father by the children, and he was given exclusive management and control of the partition action. It was claimed that,' instead of having the property divided, he procured a judgment of sale of the property and the appointment of a referee to sell. Upon the property being advertised for sale this condition was discovered, by the plaintiff Garrit Furman, who, in August, 1877,. procured an order to show cause why the judgment should not be set aside and vacated and the action discontinued. This step resulted in an order of reference to Thomas S. Moore to determine the costs to which the respective parties were entitled, and upon the costs being so determined and paid the judgment was to be set aside and the-suit discontinued. While the partition action was pending Victor B. W. Furman, .one of the sons of William, died, and Minnie W. Fur-man, now Braun, one of the present appellants, claiming to be the lawful issue of Victor, was brought in as a party defendant and was adjudged to bé the daughter of Victor and. to be entitled to share in the property. From the order vacating the judgment the said Minnie and William II. Furman appealed, the former through her guardian ad litem,- to the General Term of the Supreme -Court, where the order was affirmed. (Furman v. Furman, 12 Hun, 441.)

Thereafter, and in May, 1879, all of the remaindermen, except Mrs. Braun, consented to an order, which was entered, vacating the judgment arid discontinuing the action without costs. The costs of. the guardian ad Mtemnot having been taxed under the former ordpi’j and Moore declining to act, another reference' was ordered. Upon the coining in of the report of the referee the court fixed the costs of the guardian at ninety-five dollars, and ordered that, upon payment of the same, the judgment should be vacated and the action discontinued. It does not affirmatively appear that this order was complied with by the payment of the costs. It is now claimed that this judgment is in full force and vitality as to Minnie W. Braun and is res adjudicata of her legitimacy, and that the court has not the power, or, if it has, that it ought not to exercise it in the disturbance of so grave and important a matter. It is further claimed that Mr. Towns, who has succeeded to some of the rights of Mrs. Braun, is improperly brought in as a party to this motion, and that his rights cannot be disturbed or affected in this summary manner. .

It is clear that the court discontinued the action contingently Upon payment of costs, and the court upon appeal confirmed that decision, Without regard, therefore, to whatever rights were established by the judgment or to the reasons which were assigned for the court’s action, that decision is res adjudicata and upon compliance with the terms of the order all rights established by the judgment, however grave, were wiped out. As to all the remaindermen except Mrs. Braun the judgment was annulled by affirmative order, and all of the parties, including Mrs. Braun, have, by their acts, consistently asserted that the action was discontinued. _ If the judgment was to stand as. to Mrs. Braun then her rights in and to the property were definitely and affirmatively settled by the adjudication and needed no farther-steps to make them effective, than the use of the remedy of enforcement. She, however, evidently understood that the judgment was. no longer of validity as to her, for in October, 1895, she and Towns,, who claims under her, brought an action for partition of the same-premises, an entirely unnecessary action if the former judgment-stood undisturbed. We think this act upon her part sufficient to raise, the presumption that the order of discontinuance was complied with. Such presumption is still further strengthened by the action of the other remaindermen in entering the order of discontinuance and the-acts of all the parties in treating the judgment as annulled. Nearly all. of the attorneys who appeared in or were connected with the action up-to the time of the granting of the order of discontinuance are now dead. And the costs could have been paid under the order of tlm court, and no record made of it, nor would it necessarily appear unless a formal order was entered reciting it. That no attempt was ever made to enforce the judgment or other remedy resorted to by the guardian to collect his costs, is a strong circumstance in favor of the presumption created by the action of Mrs. Braun that the costs were paid and the order complied with. Nothing which appears in opposition to the motion tends in the slightest' degree to overcome this presumption, nor is explanation offered why Mrs. Braun and Towns commenced their partition action if they intended to claim under the judgment. ■ There can be no question of the power of the court to make the order appealed from or to grant relief upon motion, whether the application be treated as in aid of the former order or as an original application. (Ladd v. Stevenson, 112 N. Y. 325; Vanderbilt v. Schreyer, 81 id. 646; Beards v. Wheeler, 76 id. 213.)

So far as Towns is concerned he cannot be prejudiced by the order which has been made. He was not a party to the action, and upon a trial he can. now assert any right of which he is possessed,

We think the order appealed from correct; it should, therefore, be affirmed, with ten dollars costs and disbursements.

All concurred..

Order affirmed, with ten dollars costs and disbursements.  