Lipschitz v. Watson — 113 A.D. 408

Majority

p. 408

Meyer Lipschitz, Respondent, v. William R. Watson, Defendant, Impleaded with Frank Matone, Appellant.

Second Department,

June 8, 1906.

Headnote

Lis pendens when canceled for failure to serve summons.

A lis pendens filed before the service of the summons will .be canceled when it is not followed within sixty.days by the personal service or publication of the summons as required by section 167.0 of the O.ode of tíivil Procedure.

Appeal by the defendant, Frank Matone," from an order of the Supreme - Court,' made at the Kings County Special Term and -entered in the office of the'clerk óf the county of Kings on the 6th day of December, 1905, denying the said, defendant’s motion to-can cel a lis pendens herein, and also from an order entered in- said i . clerk’s office on the. 29th day. of December, 1905, denying the appellant’s motion for a reargument of said motion to cancel the Ms pendens and a resettlement of the order denying the same.

Everett B. Heymann, for the appellant.

Joseph Wilkenfeld, for the respondent.

We think the appellant’s motion for an order canceling the Ins pendens should have been granted. By section 1670 of the Code of Civil Procedure it is provided that while the notice of- Ms pendens paay be filed before the service of the summons,-in that ease personal service of the summons must be naade on a defendant ;within sixty days.'aftev the filing,- or else, before the. expiration of the same time, publication of the summons must be commenced, or service thereof ‘made without the State,' pursuant to an order obtained - therefor.' It is undisputed that the filing of the Ms pendens in this instance was not followed within sixty days by either' personal service or' the publication of the .summons. -

- The order dénying the motion to cancel^ the Ms pendens is - reversed, with ten dollars costs and disbursements, and the motion' granted, with costs. The appeal from the order denying the reargument and resettlement is dismissed, without costs.

Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred.

p. 409

Order denying motion to cancel Us pendens reversed, with ten dollars costs and disbursements, and motion granted, with costs. Appeal from order denying reargument and resettlement dismissed, without < osts.