Burr v. Bigler

By the Court.—Sutherland, P. J. After a very careful examination of this case, I have come to the conclusion, that the judgment of the special term must be affirmed, on the ground that the plaintiffs were bound by the order of the 5th of July, 1859, and the order of the general term, affirming that order, although they might not have been nominally or technically parties to the motion on which that order was made, or to the appeal from it to the general term. I think the plaintiffs must be deemed to have been estopped by those orders from bringing this action, and in it raising the questions which have been so elaborately and ably argued by their counsel. The term “ parties” in the sense of the rule which renders a prior judgment conclusive upon those who sustain that character is not restricted to those who are parties upon the record. (1 Greenleaf on Ev., § 523 ; Bates a. Stanton, 1 Duer, 79.) The term “ parties” includes all who have a direct interest in the subject-matter of the suit, and a right to make a defence or control the proceedings. (Monro a. Delavan, 26 Barb., 16; Howell's State Tri., 538; Dowl., 228, and authorities before cited.) The plaintiffs, as assignees succeeding to the real estate to be affected by the order, as such had a direct interest in the motion, and a right to be heard in opposition to it, and I think a right to appeal from the order. They knew that the motion was to be made, and consulted counsel about it; and if they were not heard in opposition to the motion, it must be presumed that they would have been heard, if they had appeared and [184] asked to be heard. I think it may be said that it was their duty, as assignees and mere trustees, to appear and oppose the motion. If they were advised, upon consulting counsel, that not being parties to the motion they would not be bound by the order made in it, I think, under the circumstances, they were wrongly advised. My conclusion is, that the judgment of the special term should be affirmed, but, under the circumstances, without costs. Clerke, J., concurred. Ingraham, J., expressed no opinion.