Opinion
April, 1920.
Final order and judgment registering title reversed, with costs to appellant, and proceedings unanimously dismissed, with costs. This court finds that the title of the petitioner, respondent, as presented in the record is unmarketable, because William Gardner or his representatives were not made parties defendant to the partition suit under which the petitioner claims title ( Gardner v. New York Consolidated Card Company, 166 App. Div. 938), and because said Gardner or his representatives were not made parties to this proceeding, nor was there any trial, decision or determination by the learned judge at Special Term of the objection raised in the answer of defendant Gardner, and also for the reason that there is a conflict between the petitioner, respondent, and defendant, appellant, involving title to part of the property which has not been tried or determined. The recital in the final order or judgment appealed from as a basis therefor that "no adverse claimant or objector or party to this proceeding having appeared or objected" is erroneous, and is contradicted by the record. Jenks, P.J., Mills, Putnam, Blackmar and Kelly, JJ., concur. Settle order on notice.