Lipschitz v. Watson — 99 N.Y.S. 418

Majority

p. 418

LIPSCHITZ v. WATSON et al.

(Supreme Court, Appellate Division, Second Department.

June 8, 1906.)

Headnote

Lis Pendens—Time for Filing.

A lis pendens filed before the service of the summons, and not followed within 60 days by either personal service or the publication of the summons, as expressly required by Code Civ. Proc. § 1670, will be canceled.

Appeal from Special Term, Kings County.

Action by Meyer Lipschitz against William R. Watson and another. From an order denying a motion to cancel a lis pendens, and from an order denying a motion for a reargument and resettlement of the order, defendant Frank Matone appeals. Order denying motion to cancel the lis pendens reversed, and the appeal from the order denying the reargument and resettlement dismissed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

p. 419

Everett B. Heymann, for appellant.

Joseph Wilkenfeld, for respondent,

We think the appellant’s motion for an order canceling the lis pendens should have been granted. By section 1670 of the Code of Civil Procedure, it is provided that while the notice of lis pendens may be filed before the service of the summons, in that case personal service of the summons must be made; on a defendant within 60 days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof made without the state, pursuant to an order' obtained therefor. It is undisputed that the filing of the lis pendens in this instance was not followed within 60 days by either personal service or the publication of the summons.

The order denying the motion to cancel the lis pendens is reversed, with $10 costs and disbursements, and the motion granted, with costs. The appeal from the order denying the reargument and resettlement is dismissed, without costs.