Eagle v. Cherney , 271 A.D.2d 1044 ( 1947 )

Plaintiff has appealed from an order of the Columbia County Special Term of the Supreme Court dismissing her complaint under rule 107 of the Buies of Civil Practice on the ground that there is an existing final judgment of a court of competent jurisdiction rendered on the merits determining the same cause of action between the same parties. The action was commenced by the service of a summons and complaint on the defendant City of New York and defendant Cherney. The other defendants were not served. The action has been dismissed as to the City of New York, and from that order no appeal has been taken. Plaintiff was the former owner of the lands in question. Defendant Cherney and defendant Berger acquired title thereto as the result of a foreclosure action in 1929. In 1936, the plaintiff instituted an action in the Supreme Court against defendants Cherney and Berger to vacate the judgment of foreclosure and sale. The trial of that action resulted in a judgment in favor of the defendants dismissing the complaint. That judgment was affirmed by this court in 267 Appellate Division 474, and by the Court of Appeals in 294 New York 818. Subsequently the United States Supreme Court denied plaintiff’s application for a writ of certiorari (327 U. S. 778). The adjudication in the foreclosure action is conclusive as to the issue presented in this action. Order affirmed, without costs. All concur. [See 272 App. Div. 845.]