¶1 (dissenting). I am of opinion that William 0. Earle, the plaintiff herein, was a necessary party to the action, brought by his sister Cornelia.
¶2 A part of the relief demanded by Cornelia for herself, “and the other legatees of said testator,” was the removal from office of trustees, who under the will were trustees for all the legatees, including William C. Earle, this plaintiff; a general accounting was also asked in that suit.
¶3 It appears that after Cornelia’s action was begun the plaintiff herein wrote to his.uncle, William P. Earle, one of the defaulting trustees, soliciting the loan of money, in which he said, referring to Cornelia’s suit: “ In regard to that suit, 1 think you were informed that I was not a party to it, having *491 said from the first that I would not lend my name to it in any manner, and regret very much the unfortunate position you have been placed.”
¶4 Afterwards the plaintiff herein denied that he had been served in Cornelia’s suit, and the question was sent to a referee to ascertain whether such was the fact.
¶5 The referee found that the summons and complaint were served upon the plaintiff herein; his report was duly confirmed and the papers relating to this- collateral reference were ordered to be made a part of the judgment roll in Cornelia’s suit.
¶6 The plaintiff herein failed to appear or answer in Cornelia’s suit and thus deliberately refused to avail himself of his day in court.
¶7 This action was commenced December 19th, 1883, and was not brought to trial until May 16th, 1900, the plaintiff allowing it to sleep for over sixteen years.
¶8 The entire subject of the present controversy was embraced in the former action, and the question is not only what was litigated in that action, but what might have been litigated. (Henderson v. Henderson, 3 Hare, 100; Reich v. Cochran, 151 N. Y. 128; Jordan v. Van Epps, 85 N. Y. 427; Stowell v. Chamberlain, 60 N. Y. 276; Patrick v. Shaffer, 94 N. Y. 430; Benjamin v. Elmira, J. & C. R. R. Co., 49 Barb. 441; Pray v. Hegeman, 98 H. Y. 351; Masten v. Olcott, 101 N. Y. 157; Lorillard v. Clyde, 122 N. Y. 47; Dows v. McMichael, 6 Paige, 140.)
¶9 In the suit brought by Cornelia this plaintiff and the executors were co-defendants, but they were “ adversary parties.” (Freeman on Judgments, § 158; Parkhurst v. Berdell, 110 N. Y. 386.)
¶10 There was no occasion, therefore, in Cornelia’s action for any defendant to serve his answer on his co-defendants and demand affirmative relief as against them.
¶11 I am of opinion that the facts in this case bring the plaintiff herein, as a defendant in Cornelia’s action, clearly within the rule established by a long line of cases that the judgment *492 in the former action is a bar, for the reason that he had abundant opportunity to litigate his rights in that action and refused to do so from motives that are clearly disclosed in this record.
¶12 I vote for reversal.
¶13 Parker, Ch. J., Gray, Haight, Martin and Vann, JJ., concur with Werner, J.; Bartlett, J., reads dissenting opinion.
¶14 Judgment affirmed.