#### The R. S. S. Company, Ltd., Landlord-Respondent, *v.*Ignace I. Apfel, Tenant-Appellant.

(Supreme Court, Appellate Term,

November, 1910.)

Former adjudications — Who are concluded — Co-defendants.

Partition — Sale and proceedings thereafter — Title of purchaser.

A decree in a mechanic's lien ease that A. is the owner of the premises is not *res adjudicata*as to the title in a subsequent suit between the defendants in the lien case where nothing therein was litigated as between them affecting tlieir rights in or title to the premises.

The purchaser at a partition sale acquires the entire estate and interest of the parties and is entitled to bring summary proceedings against a tenant of the premises under a lease from the parties to the partition action.

*319Appead from a final order in summary proceedings, entered in the Municipal Court of the city of New York, borough of Manhattan, ninth district, 'awarding possession of Ho. 11 West Thirty-fourth street to the petitioner.

Harold O. Aaronson, for appellant.

Hamilton C. Rickaby, for respondent.

Bijur, J.

The petitioner describes himself -as the landlord and owner in fee simple. The petition further shows that the title was derived from a purchase in partition proceedings-— the referee’s deed being dated March 25, 1909 — brought by one Robert S. Smith against his coten-ant of the premises; that Smith had made a lease to Apfel on October 28, 1907, and that Apfel had assigned the same to Harris, October 30, 1907. Heit-her Apfel nor Harris, it is conceded, was a party to the partition suit.

The proceeding was brought by reason of the non-payment of the rent for January, 1910. Judgment by default having been taken against Harris, Apfel opposed the petition on two grounds:

(1) On a question of fact, namely, that the petitioner was not the real owner of the premises;

(2) On a question of law, namely, that the purchaser on a partition salo does not stand in conventional relation with the tenant of the partitioners, and that, therefore, he cannot bring summary proceedings.

In support of the first point, defendant offered in evidence a decree of the Supreme Court in a proceeding to foreclose a mechanic’s lien, in which all the parties to the present proceedings (and others) were parties, and in which it was decreed, *inter*alia, *“*that, on April 10th, 1909, Robert S. Smith was and still is the owner in fee of said premises, the title whereof now stands of record in the name of the R. S. S. Co.” This decree was made and entered January 14, 1910. The petition in the ease at bar was filed January 12, 191-0.

*320The court below refused to receive the decree in the mechanic’s lien case in evidence, and the defendant duly ex: copied to that ruling. The exclusion, however, was proper.

While Robert S. Smith and the present petitioner, the R. S. S. Company, and the defendant, Apfel, were all defendants in the mechanic’s lien case, there was nothing litigated in that action as between these several defendants, affecting their rights in, or title to, the premises. See Code Civ. .Pro., § 521. The decree, therefore, lacks the element necessary to constitute it *res judicala*as between these parties and to estop them from inquiry in respect of the issue raised herein. Ostrander v. Hart, 130 N. Y. 406; Rudd v. Cornell, *171*id. 114, 126.

As to the second point, appellant contends that, while the case, of Commonwealth Mortgage Co. v. de Waltoff, 135 App. Div. 33, is authority to the effect that the purchaser on a foreclosure sale stands in such conventional relation with the tenant of the prior owner as to warrant his bringing summary proceedings under section 2235 of the Code, that conclusion is justified only by section 1632 of the Code, which expressly enacts that the conveyance, resulting upon the foreclosure of a mortgage, shall be as valid as if executed by the mortgagor and the mortgagee, and that, by virtue of this enactment, the grantee of the referee in foreclosure becomes in the eye of tho law the grantee of the mortgagor. lie argues, further, that there is no corresponding section constituting the grantee of the referee in partition the grantee of the petitioners.

But the purpose of section 1632 of the Code (derived from 2 R. S., p. 192, § 158) was merely to dispel any doubt as to the purchaser’s title, left open from the divergent theories as to whether the title, in case of a mortgage, lies in the mortgagee or in the mortgagor. See Rector v. Mack, 93 N. Y. 488, 491.

Moreover, the opinion of the Appellate Division in the Commonwealth case, *supra,*indicates plainly a reliance upon the broad provisions of section 223 of the Real Property Law; and, from that standpoint, it does not seem possible to differentiate a purchaser on a mortgage sale from a pur*321chaser on a partition sale. See Packer v. Rochester & S. E. Co., 17 N. Y. 283, 287, 288; Jackson v. Edwards, 7 Paige, 386, 404.

The order appealed from should he affirmed, with costs.

Gut, J., concurs.

Seabury, J., concurs upon the authority of the case of the Commonwealth Mortgage Co. v. de Waltoff, 135 App. Div. 33.

Order affirmed.