to the court that adequate relief can be secured to the party filing the same by a deposit of money or in the discretion of the court by the giving of an undertaking.” The cases decided under this section had, however, all taken the view that where the complaint demanded a judgment granting an interest in specific real property the situation was not one in which adequate relief could be secured to the plaintiff by the deposit of money or the giving of an undertaking.
(Luchter v.
Piazza, 227 App. Div. 313 ;
Wolinsky v.
Okun, 111 id. 536.) The 1930 amendment adds a sentence to section 124 of the Civil Practice Act, as follows:
“ The discretion vested in the court by this section may be exercised in any such action, notwithstanding the same may have been brought to recover a judgment affecting the title to, or the possession, use or enjoyment, of specific real property.” Bead literally, the amendment adds nothing to the existing law since there had been nothing in the unamended
statute which precluded the court from exercising its discretion in favor of a cancellation of a
lis pendens even though the action affected the title to specific realty. The refusal of such relief in actions of the character referred to had been due to
holdings of the courts that in such a situation the exercise of the discretion was unwarranted. It seems to me, however, that the amendment was obviously intended to alter the hard and fast rule of these decisions by declaring, in effect, that the mere circumstance that the action is one for a judgment affecting the title to or possession of specific real property does not necessarily prevent the obtaining of adequate relief by substituting a deposit or an undertaking for the notice of pendency of action. Unless, this was the intention of the Legislature the amendment is utterly meaningless and superfluous. The rigid and inflexible rule enforced prior to the' legislation in question had been subject to much abuse and had made it a relatively simple matter to tie up property by strike suits for long periods of time.
The amendment is, however, susceptible to grave abuse in the contrary direction to the extent that honest and bona fide claimants may be deprived of their right to an interest in, or the enjoyment of, specific real property by the cancellation of a lis pendens and the substitution of an undertaking in an amount fixed by the court. The power to cancel the notice of pendency of action in actions affecting the title to specific realty is one which should, therefore, be exercised with the greatest caution and in none but the most obvious cases of injustice to the property owner. The instant case appears to be a proper one for the invoking of the amendment.
The plaintiff is suing in ejectment to obtain the possession of premises leased to its assignor in April, 1920, for a term expiring on September 30, 1940. It appears that the lease referred to was