#### Vincenza De Blase, Plaintiff, *v.*Henry Hartfield and Vito A. Cuiffi, Defendants.

(Supreme Court, New York Special Term,

December, 1900.)

Mortgage — Res ad judicata.

Where, after foreclosure of a mortgage by default, the mortgagor appears and moves to set aside the judgment upon the ground that the summons was never served on her, or, in the alternative, that *317■her default be opened to the end that she may answer that she never signed the mortgage, and the motion is after full consideration denied and her appeal therefrom to the Appellate Division dismissed, it becomes *res adjudicata*between her and the mortgagor that the mortgage is valid, and she will not be permitted subsequently to bring an action against him, he having purchased at the sale in foreclosure, and his grantee to cancel the mortgage on the ground that :her name was forged to it and that the acknowledgment is false.

Action by plaintiff to cancel a mortgage for $3,000, dated Inly 20, 1895, payable November 1, 1895, to Henry Hartfield, on the ground that her name was forged to the mortgage and that the certificate of acknowledgment is false.

Thomas J. O’Neill, for plaintiff.

Abraham Nelson, for defendants.

Russell, J.

The plaintiff by this action seeks to cancel a mortgage for $3,000, bearing date July 20, 1895, recorded in New York county August 20, 1895, payable the 1st day of November, 1895, to Henry Hartfield, on the ground that her name was forged to the mortgage and the certificate of acknowledgment is false.

At the threshold of the trial she is met with an objection to the investigation of the facts, which counsel for both parties agree shall be disposed of *in limine,*as,'if the objection be held to be conclusive, a large amount of testimony, upon the issue raised as to whether the mortgage is the act of the plaintiff, will be unnecessary. That objection.is founded upon the force of a judgment of foreclosure of the mortgage complained of, a motion by this plaintiff to set aside that judgment, and the order of the court denying her motion.

The plaintiff alleges in the complaint here the foreclosure proceedings, a deed given thereunder to the defendant Hartfield, and the conveyance by him to the defendant Guiffi. The record which was given in evidence shows an action begun on the 24th day of December, 1895, by the service of a summons on the plaintiff here, who was the sole defendant in that action, and the usual proceedings upon default, order of reference and judgment of foreclosure and sale, which was entered on the 17th day of June, 1897.

*318In 1899 the plaintiff in this action procured in the foreclosure action an order to show cause why the foreclosure proceeding should not be set aside on the ground that the affidavit of service of the summons and complaint was false; that no summons had been served upon her; or, in the alternative, that she be permitted to have the default opened and answer over to plead her defense that she never signed the mortgage sought to be foreclosed. Her appearance in the foreclosure action for the purposes indicated was general, and affidavits of the parties and other persons were presented upon the hearing of the motion, with the result that, after a full consideration of the evidence furnished by both parties, the court denied the motion in all" respects. From that order an appeal was taken to the Appellate Division, which dismissed the appeal, with costs.

It was thus determined by this court in a proceeding in the foreclosure action with both parties to that action represented, after a fair investigation, that the summons was properly served upon this plaintiff, that the court acquired jurisdiction to enter the judgment in foreclosure, that any proceedings thereunder were properly had, and that this plaintiff furnished no reason to the court in view of the condition of the case to justify opening a default and allowing her to defend. This order, if effective for all purposes, fully disposed of any claim on her part that she had a defense to the mortgage either that she did not execute that mortgage, or for any other reason. It fully established the validity of the judgment, with all of its incidental consequences.

What reason, therefore, is there for a court of equity to entertain a subsequent action to try the same question over which this court has once, in a final order in the action brought upon the very instrument now attacked, disposed of upon a full and sufficient consideration of all the rights of this plaintiff? It will tend greatly to disquiet titles if a record of a judgment of foreclosure and sale, unqualifiedly confirmed by a final order upon an application to set it aside with a general appearance of the defendant upon that application, might be brushed aside and declared ineffective for any purpose at any time within ten years, no matter how many transfers had been made in the interim; and this is the result which the plaintiff claims may be had by the maintenance of the present action, for, if her plea that she can now show want of jurisdiction to foreclose the mortgage and her nonexecution of the mortgage itself is valid, she could carry her right to maintain this action in suspense as *319against even *tona fide*purchasers during the period of limitation, because the plea of a want of jurisdiction, if well founded, is valid and effective to show that all of the proceedings based upon the action and judgment attacked were of no force whatever, and no title could pass to anyone under the operation of such a judgment.

It is true that many orders made upon motions become *res adjvr dicata*only to prevent another motion without leave to renew, but such motions are usually those which affect the conduct of the action and are not determinative of final rights. It is otherwise where the question of absolute right is disposed of upon application of the party seeking to assert her claim later on, and a hearing had after an investigation upon the merits should determine for all future purposes the same question litigated between the same parties to prevent unnecessary litigation, and to lead to a security of title upon which all those interested in the future may rely.

So it has been held by the Court, of Appeals that an order determining a motion to cancel a judgment entered upon confession is conclusive between the parties in a future action brought for the purpose of having the judgment declared to stand as security. Dwight v. St. John, 25 N. Y. 203.

The decision of a motion subject to review is regarded as a final adjudication, and is *res adjudicata*between the parties in other actions. Aldridge v. Walker, 73 Hun, 281.

The determination by order granted upon a motion is a judicial adjudication which can only, be reviewed upon appeal and cannot be attacked in another action. Culross v. Gibbons, 130 N. Y. 447.

The case at bar presents clearly the reasons why such a rule should obtain. In the foreclosure action this court had proceeded to judgment of foreclosure and sale upon the faith of a supposed proper service of the summons. It was then called upon by application of the defendant in that action to consider and determine the question of its own jurisdiction, with that defendant then voluntarily coming into the jurisdiction of the court, and did upon such application adjudicate the question of fact presented, and determined the status of that foreclosure action by final order. There is no reason why that determination should be collaterally attacked by any person who was a party to the proceeding in which this court arrived at its decision. The plaintiff in that action would have been bound for all purposes by the decision, and it is of equal force against the other party.

*320-In view of the ruling of the court, the plaintiff having no further testimony to offer, the motion of the defendants that the complaint be dismissed with costs is granted.

Complaint dismissed, with costs.