p. 553Jacob Rosenthal and Abraham Swetnich, Plaintiffs, v. Samuel Friedman and Nathan Brady, Defendants.(Supreme Court, New York Special Term,Headnote
Calendar — Notice of trial and note of issue — Notice of trial — Waiver. Lis pendens — Commencement and pendency of action and notice — Cancellation of notice.Where a cause is placed on the calendar by the defendant without the service of a notice of trial on the plaintiff, the plaintiff waives service of notice of trial by appearing and procuring a postponement of the trial.
Where the defendant moves for and obtains a dismissal of an. action upon the failure of the plaintiff’s attorney to appear at the, time and place at which the cause is set down for trial, but does not enter a final judgment of dismissal, the court cannot order a cancellation of the plaintiff’s Us pendens but must wait until after the final judgment is entered.
Motion to cancel a notice of lis pendens.
Jacob M. Leibner, for defendants and motion.
Israel M. Lerner, opposed.
This is an application to cancel a notice of Lis pendens on the ground that the plaintiffs have unnecessarily neglected to proceed in these actions. The plaintiffs filed notes of issue and noticed the causes for trial, but the defendants did not serve any cross notices of trial. These causes appeared upon the day calendar of Special Term, Part III, on April 26, 1907, and at the request of the plaintiffs’ attorney they were set down for the day calendar for May tenth, but did not appear on the day calendar until May twenty-fourth, when the actions were dismissed on motion of the defendants’ attorney upon the failure of the plaintiffs to appear. The plaintiffs, in January of the present year, moved to open such defaults upon the ground, among others, that the defendants had not served a notice of trial, but the motion was denied. No appeal was taken from the order denying such motion. The defendants did not enter judg
p. 554ment dismissing the action, because their attorney, as well as the attorney for the plaintiffs, was of the opinion that the defendants were not in a- position to do so because they did not serve a notice of trial. In this they are clearly mistaken. As already stated, when the causes appeared for the first time on. the day calendar the plaintiffs’ attorney procured a postponement of the trial, and by doing so waived notice of trial. Haberstich v. Fischer, 6 Civ. Pro. 82; Brady v. Martin, 11 N. Y. Supp. 424 . The dismissal of the actions was, therefore, regular, and since the application to set aside such dismissal has been denied and no appeal from the order has been taken, there has been a final determination of these actions, although there may not have been a final determination of the rights of the parties as they may be presented in other actions. 14 Cyc. 391; note citing
Leese v. Sherwood, 21 Cal. 151 , 164; Jarvis v. American Forcite Powder Mfg. Co., 93 App. Div. 234 . In this view there was nothing further to be done in the actions, except to enter judgment upon such dismissal. The plaintiffs certainly could take no further steps, and, under the circumstances, I do not feel warranted in cancelling the notice of pendency of action for unreasonably neglecting to prosecute the action. The defendants, however, are not without a remedy. Section 1614 of the Code of Civil Procedure in part provides that after an action' is settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice and the time to appeal therefrom has expired, the persons aggrieved may apply to have the notice of pendency of action cancelled. Under the construction given to these provisions in Jarvis v. American Forcite Powder Mfg. Co., supra, the judgment, when entered herein, will be a final judgment, and upon the expiration of the time to appeal therefrom the defendants will be entitled, as a matter of right, to cancellation of the
lis pendens. Motion denied, but without costs, and with leave to renew upon showing compliance with the provisions of the statute above referred to.
Motion denied, without costs, with leave to renew.