Upon the admitted facts the plaintiff is entitled to recover the amount found to be due by the learned trial court, unless the judgment recovered in an action brought by one Lydia Havens against the plaintiff and defendants in this action is a bar to plaintiff’s right of action against the defendants, his codefendants in the Havens action.
The plaintiff is the father of the defendants. On and prior to March 5, 1894, the plaintiff was the owner of a farm upon which there was a $2,000 mortgage. He was also the owner of a life estate in a house and lot of which his wife owned the fee at the time of her death.
On the 5th day of March, 1894, by a deed, duly executed and delivered on that day, the plaintiff conveyed to the defendants the said farm and also his life estate in the house and lot of which his wife died seized. On the same day, in consideration of such conveyance by the plaintiff, the defendants executed an agreement by which they agreed to pay over to this plaintiff during the term of his natural life the net income of the property so conveyed, after deducting the interest on the $2,000 mortgage, which interest they agreed to pay. The defendants further agreed in and by said contract that in case they sold the house and lot they would apply the proceeds in payment of the said $2,000 mortgage on the farm, or that they would invest the said proceeds on bond and mortgage, and that they would pay the interest accruing therefrom to the plaintiff. The defendants were also given the right to sell the farm, but only upon condition that the avails of such sale, if made, should also be *54invested in bond and mortgage, and that the income therefrom should be paid to the plaintiff.
On the 12th day of April, 1895, the defendants sold the house and lot conveyed to them by the plaintiff as aforesaid, and received therefor the sum of $1,900. They added to the sum so received $100 of their own money and with it paid off and procured a satisfaction and discharge of the mortgage upon the farm. In that situation clearly the plaintiff, under the agreement between himself and the defendants, was entitled to receive from the defendants the net income of the farm, and they were not entitled to deduct anything on account of interest on the $2,000, except the interest on the $100 advanced by them, because, as we have seen, $1,900 of such mortgage was paid with the proceeds of the sale of the house and lot conveyed to them. Such was held to be the proper interpretation of the contract and the rights of the parties thereunder by this court in an action between the same parties. (Ellis v. Cole, 86 App. Div. 233.)
After the plaintiff had conveyed the property to the defendants and the contract above referred to had been executed, one Lydia Havens, a judgment creditor of the plaintiff, commenced an action, in the Snpréme Court against the plaintiff and defendants in this action to set aside the deed as fraudulent as against her. So far as appears no issue was raised in that action as between the defendants therein. No cross answer was served by either defendant upon the others and the rights of the respective defendants, as between themselves, were in no manner pleaded, raised or litigated in that action. Thereafter a decree was entered in the Havens actio.n which adjudged that the deed from this plaintiff to these defendants was valid as to the plaintiff in this action, and that the land conveyed was' not subject to payment of the judgment recovered by Lydia Havens against the plaintiff in this action, William H. Ellis. It was further adjudged that William H. Ellis, this plaintiff, was the owner of a life estate in the farm above referred to, subject to the lien of the $2,000 mortgage, which it was found had been taken up and' paid by these defendants. It was further adjudged that a receiver be appointed “ of the- interest of the said William H. Ellis (this plaintiff) in the rents and profits of the said premises,” and that the receiver pay out of the net income the sum of $120 annually during the con*55■tinuance of said receivership to the defendants in this action, Ida Hutches and Polly Cole, “ being the interest upon said two thousand dollars invested by them in said bond and mortgage, or legal rate of .interest; that after such payments have been made, the said receiver pay the balance which shall come into his hands after paying all taxes and expenses of every kind necessarily incurred,” etc., to said Lydia Havens, the plaintiff in that action.
Pursuant to such decree the receiver paid the defendants during the years 1899, 1900, 1901, 1902 and 1903, the sum of $720 in the ■aggregate, making two payments of $120 each in the last-mentioned year, and it is to recover such sum of $720, with interest thereon, that this action is brought.
As we have already seen, the defendants, as against their father, this plaintiff, are not entitled to retain such moneys, because the mortgage had been satisfied and discharged with the proceeds of the sale of a portion of the property conveyed to them by the plaintiff, and the contract expressly provided that such proceeds should be so applied, and, therefore, the defendants were not entitled to receive from the receiver moneys with which to make such payments. It is urged, however, that the decree in the Havens action, which directed that the moneys be paid to these defendants, is binding and conclusive as .against this plaintiff, and, therefore, that this action cannot be maintained.
We think that the decree in the Havens action m no manner affected the rights of the parties to this action as between themselves. They were not. adversary parties in that action. There was no issue as between them which they asked to have determined or adjudicated.
In Freeman on Judgments (4th ed. § 158) the rule is stated as follows: “ Parties to a j'udgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action.” ■ .
In Ostrander v. Hart (180 N. Y. 406) the court said (pp. 412, 413): “ While a judgment may determine-the ultimate rights of the parties on' the same side, as between themselves (Code C. P. §' 1204), the judgment in question did not purport to do so, but simply determined certain issues between the plaintiff m the action and the defendants Hart. Neither in form nor effect did it deter*56mine the ultimate rights of those defendants and the assignee, as between themselves, nor could such a determination have been required by any defendant unless he had not.only so demanded in his answer, but had also served a copy thereof upon the attorney of each defendant to be affected by the determination, who had appeared, and personally upon each defendant so to be affected, who had not appeared. (Code C. P. § 521.) A judgment in favor of one defendant against another cannot be entered upon the default of the latter, unless he has had. notice and an opportunity to defend as against his co-defendant. (Edwards v. Woodruff, 90 N. Y. 396; Albany Gity Savings Inst. v. Burdick, 87 id. 40.)
“ A judgment against a plaintiff in favor of a defendant determines nothing between the latter and a co-defendant, because,. although both are parties to the action, they are not 1 adversary parties,’ as that phrase is applied to the subject of former adjudication.” (See, also, Herman Estop. [2d ed.] § 138.)
To the same effect is Mahoney v. Prendergast (35 N. Y. St. Repr. 197); Woodgate v. Fleet (9 Abb. Pr. 222).
Unless the defendants contest an issue with each other, either upon the pleadings between them and the plaintiffs, or upon cross-pleadings between themselves, it will not be res adjudicata in a litigation between themselves. (Van Fleet Form. Adj. § 256; Beveridge v. N. Y. E. R. Co., 112 H. Y. 1; O'Connor v. N. Y. & Yonkers Land Co., 8 Misc. Rep. 243, 245; 2 Black Judg. [2d ed.] § 599.)
As before stated, there was no attempt in the Havens action to either plead, raise or litigate any rights of the defendants therein, as between themselves, and, therefore, under the authorities, neither the plaintiff nor the defendants herein are bound or affected m any manner by the final judgment in that case.
It follows that the judgment should be affirmed, with costs.
Williams, J., concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.