Woodenbury v. Spier — 122 A.D. 396

Majority

p. 396

John Woodenbury, Respondent, v. Siegmund Spier, Appellant.

Second Department,

November 22, 1907.

Headnote

Beal property—Vendor and purchaser — violation of Tenement House Act — when title not defective — when lis pendens no incumbrance. ■

One who has entered into a contract to purchase a tenement house cannot refuse-* to take title on the ground that the water closets-wfere in the yard instead of in the house as required by the Tenement House Act.

p. 397

A Us pendens filed in an action brought against the vendor’s predecessor in title at a. time when he had already conveyed the property, in which action the complaint was not filed as required by section 1670 of the Code of Civil Pro- ' cedure is no incumbrance, both because of the failure to file the complaint and because.the defendant in that action had parted with title.

A vendee who without cause has refused to take title and has neglected to sue for specific performance or the recovery of the earnest money for a year and a ■ half, during which time the defendant has made substantial improvements, is entitled to no relief.

Appeal by the defendant, Siegmund Spier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of March, 1907, upon the decision of tlie .court rendered after a trial at the Kings County Special Term.

The' complaint was for specific performance of a contract of sale of a tenement house in the city of Mew York; or if the defendant could not convey a good title, that the plaintiff have judgment for $500 which he had paid on the contract, and for the expense of searching the title. The trial court held the title defective, and gave plaintiff judgment for the said amounts.

The written contract was made on December 14th, 1904, and the contract day was February 17th following. The plaintiff refused to take title on the ground of alleged .defects, and did not bring this action until July 31st, 1906. Meanwhile the defendant spent $4,000 in the improvement of the house.

The other facts are stated in the‘opinion.

Herman S. Bachrach, for the appellant.

William S. Haskell for the respondent.

On. the contract day the plaintiff refused to take title on 'the-grounds (1) that there was an existing violation of the tenement house act in respect of the property, which- was a tenement house, viz., in that the water closets were in the -yard instead' of in the house, as required by the said act, and (2) that in an action entitled the Tenement House Department of the City of New York against Harris Horowitz and Samuel Melson a lis-pendens had been filed against "the property on June 4th, 1904. Mo complaint' in such

p. 398

action has ever been filed or served, and the defendants therein did not. own. the land at the time of .such filing, having conveyed the, same on May 16th, 1904, to the defendant; aiid the deed was recorded .next day. The lis pendens says the action is “for the' enforcement' of sections 100, 102, 103, 109, 99, 126 of the Tenement House Act, and the removal of violations, of the. same and to i’ecovef against the said defendants “ the penalty incurred by Such violations and the costs of this action or proceeding". These sections prescribe how sinks shall be constructed, for the removal of privy vaults, for the whitewashing of cellar walls, the repair oroofs and for receptacles for ashes and garbage.

That the water closets were in the yard instead.' of the house, or that, there Were other defects or lack of improvements or repairs,was.no defect of title. The contract was to purchase the house just as it. was, and it did not .matter how defective or tumble down it’ might be. - ■

■ The Us pendens. was no encumbrance. It is given only the “ same force and effect as the notice of pendency of action provided for in the Code of Civil Procedure ” (Tenement House Act, §130), and it lias, none unless the complaint be filed, with it as the' Code requires (§ 1670 ; Weeks v. Tomes, 16 Hun, 349 ; Albro v. Blume, 5 App. Div. 309 ). And no lien could be got on the land under it in the suit in which it was filed, for the defendants therein "did not' own the l'and when .the suit was-brought.

The plaintiff not only refused-do take title for no reason, but neglected to. bring this suit for nearly-two years and a half, during which time the' defendant spent $4,000 in improving, liis house. The plaintiff is. entitled to no relief. ..;

The judgment should be reversed on both the law and the facts,

Woodward, Jenks,- Hooker and High, JJ,, concurred.

Judgment reversed on the Jaw and the facts, and new trial granted, costs to abide the final award of costs.-.

Cases cited

Albro v. Blume 5 App. Div. 309 N.Y. App. Div. 1896-05-22 p. 398