118 N.Y.S. 163 | N.Y. App. Div. | 1909
The facts in this case, although unusual are not complicated, and as we view it there is but a single,question of law which, requires serious consideration.
The plaintiff and defendants are sister and brothers,- children of Pedro Lamberto Fernandez, deceased, a resident and large property Owner in Cuba. He died in 1892 and for some time his estate was managed in community without division among his heirs. In 1894-the plaintiff appears to have withdrawn from the community and her brothers executed and delivered to her the instrument, hereinafter for convenience called the mortgage, to enforce-which" is the object of this action. This instrument, executed by both of the "defendants, recites that plaintiff had withdrawn from the community constituted as to the property of the. estate of her father ; that her account having been liquidated, after deducting the. part "that she had to pay, showed a balance in her favor of $69,1)00 in gold-. Thereupon the defendants acknowledged themselves to be indebted to plaintiff in" said sum of $69,000, which they agreed to pay her in certain specified installments, "with the proviso that if default should be made, in the-payment of any installment, and should continue for two months, the whole amount should at once become payable, and" plaintiff should be entitled to demand ' the entire indebtedness by executory proceedings. As security for -the payments thus agreed to be made, the mortgáge was made a lien upon a plantation known as the “ Union,” and also upon certain other property, apparently of minor importance and .value. The defendants paid the installments as agreed for some- time -but then discontinued payment and plaintiff elected to declare the whole sum due. Meanwhile, a prior mortgage on thé “ ¡Union ” planta? tion hád been foreclosed and the property sold. Plaintiff there
The sole question, as we regard it, is whether as between the plaintiff and her brother Jose, the present respondent, the judgment in the declaratory action in the court of first instance is res adjudieata of the matters alleged in the complaint herein. The two appeals.in the declaratory action may be disregarded because their final result was to affirm the judgment of the court of first instance. The competency of the Cuban courts to entertain the declaratory action does not seem to be open to-serious question. It was admitted in the action itself and both parties to this action have pleaded and relied upon one or the other of the judgments therein rendered. Of course a judgment to be res adjudhatw as to one of the parties must be so as to "both, and, therefore, if the judgment
The; judgment appealed from must 'he affirmed, with costs.
Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred. (
Judgment affirmed, with costs.