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Clark v. A. N. McInnis Realty Co.

121 N.Y.S. 683 Court N.Y. Sup. Ct. English

Delivered by McCALL, J.

Contents

Majority

p. 683
(65 Misc. Rep. 307.)
CLARK v. A. N. McINNIS REALTY CO. et al.
(Supreme Court, Special Term, New York County.
December, 1909.)

Headnote

Lis Pendens (§ 3[1] )—Actions in Which Pboper.
An action to determine the ownership of a mortgage on property sold under foreclosure, which mortgage was not cut off by the foreclosure, does not involve the title to the mortgaged premises, and the purchaser thereof at foreclosure sale is not a proper party defendant thereto, and may have canceled a lis pendens filed against the property in such suit.
[Ed. Note.—For other eases, see Lis Pendens, Cent. Dig. §§ 3-8; Dec. Dig. § 3.[1] ]
Action by Besse C. Clark against the A. N. Mclnnis Realty Company and others. On motion to cancel a lis pendens.
Motion granted.
Albert F. Sharpe, for plaintiff.
Weschler & Rothschild, for defendant Rosenberg.

I do not see from these pleadings how- the defendant Rosenberg is involved at all in this litigation, except in being arbitrarily made a defendant. He was a purchaser for value at a foreclosure sale under mortgages that are in no wise attacked as to validity, nor is an attempt made to impeach the proceedings. Whatever issue is raised as between plaintiff and the realty company may be litigated; but it must proceed, it seems to me, with the fact established that the realty company has been regularly and legally divested of the fee to the realty, and that Rosenberg is the owner thereof, subject to the lien of the mortgages not cut off by the foreclosure under which he bought. Whoever the owner of the $8,000 mortgage may prove to be is a matter Rosenberg is only concerned in to the extent that he recognizes that his property is burdened with that lien; but this does not justify his being made a party to the suit, and certainly will not permit of his title being clouded with the filing of a lis pendens in a suit to determine that issue, because it cannot be said but that the rights of the litigants may be determined and the title remain the same; the action in no wise being to determine a title to the fee or an interest in realty within the meaning of the Code. The motion is granted, with $10 costs.