¶1 The title offered to the plaintiffs, came to the defendant through the will of Gideon Tucker, and under proceedings in partition instituted by George W. Tucker, as trustee, but to which action certain persons entitled to the property in remainder were not made parties. It is clear that an estate in trust merely for the benefit of the cestui gw trust cannot be set up against them. As to them the principle contained in the maxim “ res inter aUos acta alterinocere non debit,” applies and the court below properly held (36 Hun, 368) that they would not be concluded by the partition judgment. It follows, therefore, that the purchaser should not be required to complete his bargain, for there was left at least a reasonable chance that the person so interested might raise a question against his title. (Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234, 248; Jordan v. Poillon, 77 id. 518; Jenkins v. Fahey, 73 id. 355.) He was, therefore, entitled to recover back the money paid in anticipation of performance, by the defendant, of the contract to convey. This was $1,600, and with interest, and $300 expenses incurred in the investigation of title constituted the amount in controversy. The allowance made by the trial judge exceeded five per cent on the recovery, and was, therefore, properly reduced to conform to the provisions of law relating to it. (Code, § 3253, sub. 2.) The case is one where a sum of money is claimed and is recovered; that was the only object of the action. The value of the subject-matter incidentally involved by the nature of the controversy is, therefore, not material.
¶2 Both appeals fail and the judgment of the court below should be affirmed, without costs to either party.
¶3 All concur.
¶4 Judgment affirmed.