Majority
p. 658J. Henry Small Realty Company, Appellant, v. Barnett Strauss and Others, Respondents. Second Department, May 8, 1914.
Headnote
Real property — lis pendens — suit for specific performance and to enforce vendor’s lien.A suit to enforce the specific performance of a contract to erect a building on lands sold by the plaintiff to the defendant, which holds them for the benefit of other defendants, and to impress a lien thereon for the unpaid purchase price and to compel the execution of a mortgage, is one brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property, within the meaning of section 1670 of the Code of Civil Procedure. Hence, in such suit the plaintiff is entitled to file a Us pendens.
In determining the right to file a Us pendens the court will not seek to see whether the action is well brought.
Appeal by the plaintiff, J. Henry Small Realty Company, 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 Kings on the 16th day of January, 1914.
George E. Miner, for the appellant.
Louis J. Moss, for the respondents Barnett Strauss and Webster Development Company, Incorporated.
George C. Woolf [John L. Bernstein with him on the brief], for the respondent Isaac Palatinsky.
This is an appeal from an order of the Special Term discharging and canceling of record a lis pendens. The action
p. 659
is to enforce specific performance of a contract to erect certain specified and prescribed buildings on land sold by the plaintiff to the defendant corporation, which holds the land for the use and benefit of the other defendants, to impress a lien thereon for the unpaid purchase price, and for a decree that the defendant execute and deliver a mortgage to plaintiff, provided for in the said contract. We think that the action may be described as one to recover a judgment affecting the title to or the possession, use or enjoyment of real property within the purview of section 1670 of the Code of Civil Procedure. (Bachman v. Wagner, 40 N. Y. St. Repr. 757 . And see Lawrence v. Saratoga Lake R. Co., 36 Hun, 467 .) In determination of the right to file a Us pendens, the court will not seek to see whether the action is well brought. (Jones v. Armenia Insurance Co., 136 App. Div. 453 ; Brox v. Riker, 56 id. 388, 391; Lindheim & Co. v. Central Nat. Realty & Construction Co., 111 id. 275.)
The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.