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Werner v. Jackson

115 A.D. 176 Court First Department, Decision date 1906-10-19 English

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p. 176
Sigmund Werner, Appellant, v. James M. Jackson and Others, Respondents.
First Department,
October 19, 1906.

Headnote

Real property — lis pendens — complaint conclusive as to right thereto.
The right to the cancellation of a Us pendens in an action for specific performance must be determined upon the allegations of the complaint or facts clearly established, The court will not look into the facts as upon a trial nor search the complaint as upon a demurrer.
Appeal by the plaintiff, Sigmund Werner, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the comity of ¡New York on the 4th day óf May, 1906.
Herman Kahn of counsel [Paul Gross, attorney], for the appellant.
Henry L. Bogert, for the respondents.

This is an appeal from an order of Special Term canceling a lis pendens upon giving security. The judgment demanded by the complaint was that the defendant Simon P. Flannery be decreed to specifically perform a contract for the conveyance of real estate in the city, of New York, and that in the alternative the plaintiff be decreed or adjudged to have a lien for the amount dejiosited upon the execution of the contract.

It has been determined in this department that the right of-the plaintiff to retain the notice of pendency of action in an action for a decree for specific performance of the contract for a conveyance of real property must be determined upon the allegations of the complaint, or facts clearly established, and that upon such a motion as in the case at bar we are not authorized to look into the facts as upon a trial, nor 'to search the complaint as upon a demurrer. (Tishman v. Acritelli, 111 App. Div. 237 ; Lindheim & Co. v. Central Nat. Realty & Construction Co., Id. 275 ; Wolinsky v. Okun, Id. 536; McCrum v. Lex Realty Co., 113 id. 58.)

p. 177
Upon those authorities the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — O’Brien, P. J., Ingraham, Clarke and Houghton, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.