Ackerman v. True — 60 N.Y.S. 608

Majority

p. 608

ACKERMAN v. TRUE.

(Supreme Court, Appellate Division, First Department.

November 10, 1899.)

Headnote

Lis Pendens—Encroachment on Street.

In a suit for damages and to enjoin encroachments on a street, lis pendens cannot be filed against defendant’s land adjoining the street where the obstructions exist.

Appeal from special term, New York county.

Suit by Charlotte V. Ackerman against Clarence F. True. There was an order denying a motion to cancel lis pendens, and defendant appealed.

Reversed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

A. B. Cruikshank, for appellant.

W. J. Kelly, for respondent.

This action was brought for an injunction and to recover damages claimed to be caused by the defendant encroaching upon the street, which encroachment interfered with light, air, and access to certain premises belonging to the plaintiff. In that action a lis pendens has been filed against the defendant’s land adjoining the street where these obstructions exist. The land described in the notice of lis pendens is in no manner affected by the suit, and it is perfectly clear that it is an abuse of the process of the court to allow such a lis pendens to remain upon its files.

The motion to cancel the same should have been granted, and the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.