Majority
p. 260Christian Steinmetz, Respondent, v. J. Joseph Kindred and Others, Defendants, Impleaded with Mary E. Kindred, Appellant. Second Department, July 23, 1907.
Headnote
Real property—lis pendens — failure to serve summons — cancellation.When in an -action for the specific performance'of a contract to convey lands-the summons is not served upon the- owner after the filing of a Us pendens within- - the time required by section 167.0 of the Oode of Civil Procedure, she may move to -cancel the notice although other defendants have been served.
The owner is “ aggrieved ’•’ by a failure to make service within .the time required within the meaning 'of section 1674 of the Code óf Civil Procedure, which, allows the court on a motion of the party aggrieved to cancel the notice in. its discretion for unreasonable neglect to proceed with the action.
When the contract sued upon was.not made by the owner of the land and there' has been long neglect to serve the summons upon her,, the court should not in its discretion refuse a cancellation of the lis pendens because'the summons was served before the actual service of the defendant’s notice of motion, to cancel the Us pendens. .... -
Hirschberg, P. J., and Rich, J., dissented.
Appeal by the defendant, Mary E. Kindred, from an order of the Supreme Court, made at the Kings' County Special Term and entered -in the office of the clerk of the county of Queens on the 2ftli day of August, 1906, denying the said defendant’s motion to cancel a notice of pendency of the action.
L. H. Doorly, for the appellant.
Hulbert & Webb, for the respondent.
■ This is a suit to enforce specific performance of a contract to convey real estate. The appellant is the owner of the real ’ estate,
p. 261
but did not make the contract. Section 1670 of the Code of Civil Procedure permits a notice of the pendency of the action to be filed with the complaint before the service of the summons, but requires, in that case, that the summons be served personally on “a defendant ” within sixty days after such filing, or else that publication of the summons be commenced or service thereof be made without ' the state, pursuant to an order for that way of service: Personal service was made on one or more of the other defendants but'not on the appellant within the time limited, nor for over two months thereafter; nor was such substituted service made or’ begun. Such service on other defendants did not stand in the way of her moving to cancel the notice.; that she was not served sufficed. If that were not so, “ a defendant ”, any defendant, could be served, and the owner of tlie fee, not served, would be unable to move to cancel the lien. . It is section 1674 which provides for the motion to cancel. It provides that if the plaintiff after filing the notice “ unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of any person aggrieved”, direct that the notice be cancelled of record. The appellant was aggrieved by the unreasonable neglect to serve lier in the time limited. It cannot be said that the service of other defendants, prevented her from being- aggrieved because she was not served. The two sections read together show that that is not their meaning .or intention (Levy v. Kon, 114 App. Div. 795 ). The party who-has standing to move to cancel is the owner. :
It' appears, that the appellant was served with the summons after making the affidavit for her motion herein, and before the notice of motion was served. This did not suffice to enable the court below to deny her motion as matter of discretion, in view of the facts of this case of the long neglect, and that the appellant, ás app’ears by the complaint itself, never made.the written contract sued on.
The order should be reversed and the' motion granted.
■ Jenks and Miller, JJ., concurred, the latter in result; Hirschbeeh, P. J., and Rich, J., dissented.
Order reversed, with ten dollars costs and disbursements, and 'motion granted, with costs.
Cases cited
- Levy v. Kon 114 App. Div. 795 p. 261