Cohen v. Ratkowsky — 43 A.D. 196

Majority

p. 196

Max Cohen, as Trustee in Bankruptcy of the Estate of Jacob Cohen and Morris Levy, and the firm of Cohen & Levy, Bankrupts, Respondent, v. Bernard Ratkowsky, Appellant, Impleaded with Jacob Levy and Others

Headnote

Notice of Us pendens — when set aside and, canceled for an unreasonable neglect to proceed with the action, a new notice of lis pendens cannot be filed.

Where a plaintiff, who has filed a notice of the pendency of an action and two days later an amended notice, has not served the summons upon any of the defendants within sixty days after the filing of the notices, either within or without the State, and has not commenced the publication of the summons within that time, as required by section 1670 of the Code of Civil Procedure, the court may, upon the application of a party having a title to or interest in the prop

p. 197

erty affected by the notices (and, therefore, a person aggrieved within the meaning of section 1674 of that Code), set aside and cancel such notices on the ground that the plaintiff has unreasonably neglected to proceed with the action.

Such adjudication by the court determines the right of the parties so far as they are or can be affected by the filing of a notice of lis pendens, and the plaintiff has no right to file another notice while the order is in force.

Appeal by the defendant, Bernard Ratkowsky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day -of June, 1899, denying his motion to cancel of record a notice of pendency of action.

Gustavus A. Rogers, for the appellant.

Leopold Jaches, for the respondent.

Upon the 17th of February, 1899, the plaintiff filed a notice of the pendency of the action, and two days later he filed an amended notice. A motion was subsequently made by one of the defendants "to set aside and cancel of record both the original and amended "notice, and they were upon the the 28th of April, 1899, by an order -duly entered on that day, canceled upon the ground that the “ plaintiff had unreasonably neglected to proceed with the action.” On the fourth of May following the plaintiff filed another notice of pendency of the action, and the defendant Bernard Ratkowsky moved "to set that aside. The motion was denied and he has appealed.

Section 1670 of the Code of Civil Procedure provides that a notice of the pendency of an action may be filed with the complaint before service of the summons, but in that case personal service of the summons must be made upon a defendant within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the State pursuant to an order obtained therefor as provided by law. It is admitted, or at least not denied, that mone of the defendants was served with the summons within sixty days after the original and amended notices were filed, either within or without the State, and that publication of the summons was not commenced within that time. Section 1674 of the Code of Civil Procedure provides, among other things, that if the plaintiff filing

p. 198

the notice unreasonably neglects to proceed with the action, the court may, in its discretion, upon the application of any person aggrieved, direct that the notice of pendency of the action theretofore filed be canceled. Ratkowsky was an interested party. He had title to or an interest in the property affected by the notice, and,., therefore, was a person aggrieved within the meaning of the statute. The court upon his application, in the exercise of its discretion, set-aside and canceled the notices upon the ground, as we have already seen, that the plaintiff had unreasonably neglected to proceed with, the action. This was an adjudication upon that subject, and determined the rights of the parties so far as they were or could be-affected by the filing of a notice of the pendency of the action. The order was the law of the case, and' so long as it remained in force the plaintiff could not file another notice. If the plaintiff was not satisfied he should have appealed from the order. He could not destroy the effect of it in the manner attempted.,. To hold otherwise would render nugatory the benefits sought to be conferred by. the statute.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to set aside and cancel the notice granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

■ Order reversed, with ten dollars' costs and disbursements, and motion granted, with ten dollars costs.