Opinion
December Term, 1896.
Order reversed, with ten dollars costs and disbursements to abide the event, and proceedings remitted to the Special Term for a rehearing upon the issues raised by the petition and answers. —
The only portions of the order assailed on this appeal are those which award relief to the respondent as the daughter of the late Victor B.W. Furman. The referee regarded the judgment in the partition suit of Garrit Furman and wife against William H. Furman and others as conclusive evidence of the legitimacy of Minnie W. Braun, and the Special Term, by confirming his report, must be deemed to have adopted his view in this respect. We think that view was erroneous. It was proven before the referee that, in 1885, Minnie W. Braun, as a co-plaintiff with Mr. Mirabeau L. Towns, instituted an action for the partition of the very property which had been involved in the Furman partition suit. We had occasion to consider the effect of her conduct in this respect in Furman v. Furman ( 9 App. Div. 94). There the question was whether a conditional order discontinuing the partition suit in which the judgment was rendered had been complied with, and we held that the bringing of the subsequent action by Mrs. Braun in association with Mr. Towns was presumptive evidence of such compliance. "We think this act upon her part," said Mr. Justice Hatch in that case, "sufficient to raise the presumption that the order of discontinuance was complied with." We also held that, upon compliance with the terms of the order of discontinuance, all rights established by the judgment, however grave, were wiped out. The referee in this proceeding, on the contrary, acted on the assumption that the order did not do away with the adjudication as to the legitimacy of the respondent. For the error below in treating the decree in partition as a valid and existing judgment between the parties on this question, the order appealed from must be reversed, with costs to abide the event, and the proceeding remitted to the Special Term for a rehearing upon the issues raised by the petition and answers. All concurred.