¶1There are two reasons why the State should not succeed, and why the judgment for plaintiff should be reversed. Both are founded on the principle of estoppel.
¶2The judgment in the action of ejectment brought by the State not only estops the State from trying again the title to lot No. 11, in Totten & Crossfield’s Purchase, but from trying the title to the lands about the house, part of which are lot No. 14 (People ex rel. Lake Placid Co. v. Williams, 145 App. Div. 34; People ex rel. Chase v. Wemple, 144 N. Y. 478), which were part of the defendant Galusha’s occupancy and possession in 1895 as found by the trial court.
¶3The State was put upon inquiry and did, when it brought ejectment against Edna Galusha, make an inquiry as to what Edna Galusha occupied. It had the means of inquiring of game protectors, fire wardens, Superintendent of Lands and Forests and a Division of Parks, or similar officers and employees by whatever name known at the time in question. (Conservation Law.) That inquiry disclosed her occupancy not only of lot No. 11, but of the property of the land in question. (Finding 59, p. 31.)
¶4The question arises, did the State know when it brought its action against Edna Galusha that she occupied part of lot No. 14, involved in the action at bar in connection with lot No. 11? When a person knows or ought to know of the existence of a fact is described with great accuracy by Collin, J., in Fidelity & Deposit Co. v. Queens County Trust Co. (226 N. Y. 225, 233): “ One who has reasonable grounds for suspecting or inquiring ought to suspect, ought to inquire, and the law charges him with the knowledge which the proper inquiry would disclose. Actual notice may be proved by direct evidence or it may be inferred or implied. Actual knowledge is not required. Actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would have been warranted in inferring notice. If a person has knowledge of such facts as would lead a fair and prudent man, using ordinary thoughtfulness and care, to make further accessible inquiries, and he avoids the inquiry, he is chargeable with the knowledge which by ordinary diligence he would have acquired. Knowledge of facts, which, to the mind of a man of ordinary prudence, beget inquiry, is actual *24notice, or, in other words, is the knowledge which a reasonable investigation would have revealed.”
¶5This quotation is to show that at the time the State brought its action against Edna Galusha to recover lot No. 11, it knew it had an action for that part of lot No. 14, for the recovery of which the action at bar is brought and that it was adversely held like the rest of Galusha’s land.
¶6The occupation of Edna Galusha was open, notorious, continuous and adverse and had existed from 1895 to the time when the action was brought against her. Under such circumstances it seems to me that the judgment introduced in evidence in the former action between the State and Edna Galusha constituted a bar. The rule is that a bar exists “ 1 in respect of a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward, only because … [the State has], from negligence, inadvertence, or even accident, omitted a part of their [its] case.’ ” (Beloit v. Morgan, 7 Wall. [U. S.] 619.)
¶7Judge Vann, an official referee, found: “ That Edna Galusha and her predecessor in title had occupied the premises described in the complaint (Lot No. 11, Township 15, Totten & Crossfield’s Purchase) openly, notoriously, continuously, and adversely under a claim of title thereto' … for a sufficient length of time before the commencement of this action to entitle her to the possession and ownership thereof by adverse possession.” The open, notorious, continuous and adverse possession of that part of lot No. 14 north of the lake was indicated by substantial structures, a dwelling house and barn, the cleared meadow part of which was on that lot (fol. 194) and by the brush fence (fol. 211) and by contiguity to lot No. 11. (People ex rel. Lake Placid Co. v. Williams, supra.)The tax sale of 1890 of lot No. 14 would have been available to the State as a source of title in the Galusha action. The claim of title of Edna Galusha used by her in the action of the State against her is the same claim of title that the Shipleys as privies to Edna Galusha have used in the action at bar. Edna having been adjudicated the owner of part of the parcel to which the State might have made claim to the whole, but neglected to do so, became the owner of the whole of the parcel to which her claim of title showed she was the owner. (Civ. Prac. Act, § 38, subd. 3; Donhoue v. Whitney, 133 N. Y. 178.)
¶8The judgment in the action of ejectment never has been questioned by obtaining prior to September 1, 1911, a second judgment (Code Civ. Proc. §§ 1525, 1527; 1 Weed Practical Real Estate Law, *25419) nor by an appeal to the Appellate Division. The judgment stands. It is conclusive as to all of the land occupied whose title should have been put in issue upon the trial. (Civ. Prac. Act, § 1009.)
¶9The only answer the State has to this contention of the defendants Shipley is, that it did not know that the land in the Shipley suit at the time it brought its action against Edna Galusha was claimed adversely by Edna Galusha.
¶10The case here of the Shipleys is that the State has negligently, inadvertently or accidentally, to -put it mildly, failed to make the subject of its litigation all of the lands occupied by Edna Galusha adversely to it. The reason of the rule of estoppel by judgment is that the citizen should not be permitted to be annoyed by two suits when the matters in difference should be determined in one.
¶11As His cock, J., said: “ Thus there is afforded that opportunity for a full and complete trial of these issues which calls for the application of the fundamental principle governing the general doctrine of res adjudicata that a party shall not be heard a second time on an issue which he has once been called upon and permitted to try and contest.” (Hendrick v. Biggar, 209 N. Y., 440, 444.)
¶12Hogan, J., in Hull v. Hull (225 N. Y. 342, 353, 354), states the rule: “In the application of that principle [res adjudicata] consideration must be given to a further rule of law that a judgment is final and conclusive upon all matters which might have been litigated and decided in the action.”
¶13The result of the failure of the State to include in its action against Edna Galusha the lands claimed now by defendants Shipley, has been to unduly annoy the Shipleys as privies of Edna Galusha in this action.
¶14To put the case of the defendants concretely, they claim that Edna Galusha established her ownership to the lands described in the former action by adverse possession for twenty years under a claim of title; and that the lands so adjudicated to be owned by her were part of the lands occupied under the same claim of title adversely by her. Such other part of her lands are the lands in suit. Estoppel by judgment constitutes the protection of the defendants against trying a second time the title of Edna Galusha to the lands so occupied by her. (34 C. J., Judgments, p. 906; Southern Pacific R. R. v. United States, 168 U. S. 1.)
¶15The conduct of the State seems inequitable and unjust. As has been pointed out, it knew the extent of the claim of ownership by Edna Galusha, it observed the defendants erecting the substantial buildings of a summer camp on the shores of Indian lake and never made claim to the Shipleys that they were building upon lands *26claimed to be owned by the State. Such acts constitute the second ground of estoppel.
¶16The State in this action does not claim that it did not know of the building by the Shipleys upon lands in question about the year 1917. Among the powers of the Conservation Commissioner is to bring actions in ejectment and trespass. That power involves the power to restrain persons claiming lands owned by the State from building upon them. (Conservation Law, § 50, subd. 11, ¶ c, as added by Laws of 1916, chap. 451; since amd. by Laws of 1928, chap. 242.) In suffering the Shipleys to build without restraint, it seems to me, the State violated one of the oldest and soundest of equitable principles. “ Lord Mansfield would not suffer a man to recover even in ejectment at law who had stood by and seen the defendant build upon his land.” (Storrs v. Barker, 6 Johns. Ch. 168; The King v. The Inhabitants of Butterton, 6 Durnford & East, 554.)
¶17It is true that the defendants have not pleaded the defense of res adjudicata but they have proved it. It was an issue presented by the introduction of the report of the referee and judgment had in the action between the State and Edna Galusha.
¶18The answer, being insufficient, can be amended by the trial court or by an appellate court where the issue is not altered.
¶19The' answer should be ordered amended to conform to the proof on the issue raised thereby.
¶20The judgment should be reversed and the complaint dismissed.
¶21Judgment affirmed, with costs.