(concurring). Under the fourth clause of the will of Adolph Levy, the children of Samuel Levy acquired vested remainders in the premises described in the complaint. The plaintiff, Arthur G-. Levey, and the defendant Carrie Levy, are two of the children of said Samuel Levy. Vested legal interests in lands cannot be affected by judgments unless the persons owning these estates are parties to the judgment. Arthur G-. Levy and Carrie Levy, having vested legal estates at the time the judgment in foreclosure was recovered, were necessary parties to that action, and, not having been made such, the sale under that judgment did not cut off their estates. In Trust Co. v. Roche, 116 N. Y. 120, 22 N. E. 265, it was held that James C. Foster was not a necessary party to that action for the foreclosure of a mortgage, because he had not a vested legal or equitable estate in the land. In that case the legal estate was held by a trustee, who and the beneficiary were parties. In Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805, it was held that, when a certain mortgage was foreclosed, the children of Clarissa Curtis had no vested or legal interest in the land, and therefore were not necessary parties to the foreclosure. In that case the legal title was held by a trustee, who and the beneficiary were parties. In Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811, it was held that the grandchildren of John Mortimer, Jr., had vested legal estates in the land when it was sold under a judgment in partition, and that they were necessary parties to the action, and, not having been such, their titles were not cut off. The opinion in Campbell v. Stokes concluded as follows:
“Whether the remainders in this case were vested or contingent, the persons in being when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties.”
This remark is a mere dictum, for the court had decided that the grandchildren had vested remainders at the time the partition judgment was entered. In Moore v. Appleby, 36 Hun, 368, affirmed 108 N. Y. 237, 15 N. E. 377, it was held at general term that the children of Charles Tucker had vested interests in the land when the judgment in partition was entered, and, not being parties thereto, *388were not affected by it. In the court of appeals it was assumed, without discussion, that these children had vested estates in the land. It is said: “But to which action certain persons entitled to the property in remainder were not made parties.” Assuming the premises in the four cases cited to be correct, they are harmonious, and were correctly decided in so far as the question of parties is concerned. Story, Eq. PI. § 144 et seq. The judgment should be reversed, and the demurrer overruled, with leave to the defendants to answer upon the payment of the costs of this appeal and in the court below.