
    John G. Becker, Respondent, v. Frederica Studeman, Appellant.
    Res ad judicata— a judgment in an equitable action defining a boundary line it conclusive between the sajne parties on the subsequent trial of an ejectment suit.
    
    A dispute having arisen between two' adjoining lot owners respecting the dividing line between their premises, one of the parties brought an action in equity to establish the dividing line, while the other party brought an action in ejectment to recover possession of a strip of land which he claimed belonged to him.' The two actions were referred to the same referee, who, after a trial of the equitable action, decided the same. -The plaintiff in that action accepted the conclusion of the referee and entered a j udgment in accordance therewith. On the trial of the ejectment action, the judgment roll in the equitable action was received in evidence and the referee awarded judgment in favor of the plaintiff in the ejectment action in accordance with the conclusion reached by him in the equitable action.
    Upon an appeal from the judgment rendered in the ejectment action it was Reid, that the defendant in that action could not insist that the conclusion reached by the referee in the equitable action was the result of a mistake upon the part o f the referee, and that, if such j udgment was corrected so as to accord ' with the referee’s intention, it would embrace the premises awarded to the plaintiff in the ejectment action;
    That any error committed by the referee in the equitable action could not be corrected by a collateral attack thereon.
    Appeal by the defendant, Frederica Studeman, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Chautauqua on the 2d day of October, 1902, upon the report of a referee awarding possession of a certain parcel of land to the plaintiff.
    
      Thomas H. Larkins, for the appellant.
    
      Elton D. Warner, for the respondent.
   Adams, P. J. :

The parties to this action are the owners of adjoining premises situate upon Lion street and south of the intersection of Seventh . street and Lion street, in the city of Dunkirk; and this action is in ejectment to recover possession of a strip of land two feet, and one-half inch in width along the south line of the plaintiff’s premises.

It seems that a dispute having arisen respecting the dividing line between the premises of the respective parties, the defendant herein brought a suit in equity to establish such line, and upon the trial théreof it was made to appear that the disputed line in all the com veyances upon which the plaintiff’s title rested was located 134 feet south of the intersection of Seventh and Lion streets, whereas it was claimed by her that it should have been but 128 feet from such intersection. Both pieces of land were situated on the west side of Lion street, the land of the plaintiff in the equity suit being south of the land of the defendant in that suit.

The present action was commenced at about the same time, as the suit in equity, and both actions were referred to the same ■referee, who, after'a-trial of the equitable action, found that there was a mistake in the description of the line in question, and that the same, instead of being 134 feet south of the corner of Seventh and Lion streets, was but 132 feet and one-half inch therefrom. The plaintiff in that action accepted the conclusion of the referee and entered a judgment in accordance therewith, which definitely established the disputed line at the location named.

Upon the trial of the present action the judgment roll in the equitable action was received in evidence, and after receiving additional testimony the referee found in favor of the plaintiff, awarding him possession of the strip two feet and one-half inch in width next north of the line as-located and established in-the equitable action! It is now insisted by the defendant’s counsel that the conclusion reached by the referee in the equitable action and the judgment entered thereon were erroneous in that the line in dispute should have been located one foot north of the northerly line of a barn upon the defendant’s, premises;, that such error was the result of a mistake upon the part of the referee, and that if the same were corrected so as to accord with the referee’s intention and a new line established, it would embrace the premises awarded to the plaintiff in-the present action.

This brief statement of the facts is, in our opinion, sufficient tv dispose of the present appeal, for'it is hardly necessary to - suggest that any error committed- by the referee in the equitable action cannot be corrected by a collateral attack. (Audobon v. Excelsior Ins. Co., 27 N. Y. 216, 221 ; Stannard v. Hubbell, 123 id. 520.)

Either an-appeal should have been taken from the judgment in the equitable action, or-a- motion made to open the same for the purpose of having the mistake corrected ; and inasmuch as the.defendant has seen fit to adopt neither of. these remedies it is fair to assume; that she was quite content with the judgment entered by her attorney, and as both actions were tried before the: same referee, who - could not have reached the conclusion he did in the present action, if he had been convinced of the commission of the alleged error in the former action, it must be further assumed, we think, that the defendant’s contention is not well founded.' But however that may be, it is sufficient, so far as this appeal is concerned, to say that for obvious reasons the defense relied upon is not - available to the defendant in the present action. The judgment, appealed from should, therefore, be affirmed.

All concurred.

Judgment affirmed, with .costs.  