Niebuhr v. Schreyer — 1 N.Y. St. Rep. 626

Majority

p. 626

Margaret E. Niebuhr, appellant, v. John Schreyer, respondent.

(New York Common Pleas,

General Term,

Filed June 7, 1886.)

Headnote

1. Lis pendens—When may be piled by dependent—Code op Civil Procedure, § 1673 —Power op court to cancel.

. The right to file a lis pendens is an absolute right, not depending on the discretion of the court, and a notice once filed in a proper action, the court can only order cancelled when the action shall be settled, discontinued or abated, or final judgment rendered against the party filing the notice, and the time to appeal has expired, or when the party unreasonably neglects to proceed.

% Same.'

A defendant who sets up in his answer a counter-claim, on which he demands an affirmative judgment affecting the title to, or possession, use, or enjoyment of real property, is by section 1673 of the Code of Civil Procedure given the right to file a lis pendens.

3. Same.

Where the answer in an action set up as a counter-claim that the plaintiff, acting on behalf of a firm, of which the defendant was a member, took funds of the firm and purchased therewith certain real property; that the property so purchased was legally and equitably held, and should be applied to the payment of certain advances and profits alleged to be due the defendant, and asked judgment that the property be sold and applied to the discharge of the claim of the defendant for such advances and profits, with interest thereon to the extent of the value thereof. Held, that this counter-claim, and also the judgment demanded, affected the title to real property, and that the defendant had a right to file a lis pendens, and the motion to cancel it was properly denied.

Appeal from an order of special term denying motion td cancel a notice of lis pendens filed by defendant against, plaintiff of record. '

Section 1673 of the Code of Civil Procedure gives a defendant the right to file a Us pendens when he sets up in his answer a counter-claim on which he demands an affirmative judgment, affecting the title to, or the possession, use or enjoyment of real property.

The answer in this action sets up a counter-claim as follows: “Sixth. And this defendant further answering, and by way of counter-claim, alleges that, at the time said joint enterprise was being carried out between the plaintiff, acting on behalf of said Henry P. Niebuhr and this defendant, the said plaintiff took part of the funds in which this defendant was jointly interested with said Henry P. Niebuhr, as aforesaid, and purchased therewith the premises situate on the northerly side of Ninety-third street, etc., * * * that the said property described as aforesaid is legally and equitably held, and should be applied to the payment of the balance of his advances and his profits aforesaid, and he asks judgment that the said property may be decreed liable and held for the amount of his said

p. 627

advances and profits, and that he may be decreed to be the owner thereof to an amount sufficient to satisfy said claim.”

The relief asked for, in respect to the property described in the above paragraph, is as follows: “That it be adjudged that the property mentioned and' described in the sixth paragraph of this answer be adjudged to be joint property, in which this defendant and plaintiff as aforesaid are jointly interested, and that the same be sold to pay and discharge the claim of the defendant as aforesaid, with interest to the extent of the value thereof; and for that purpose, that a sale of said property be had under the direction of this court.”

That this counter-claim does affect the title to real property, asserting, as it does, a joint interest with the plaintiff in certain premises on the northerly side of Ninety-third street; and does demand a judgment affecting the title to such property, we think, carmot be questioned.

The right to file a lis pendens is an absolute right not depending on the discretion of the court, and a notice once filed in a proper action, the court can only order cancelled when the action shall be settled, discontinued or abated, or final judgment rendered against «the party filing the notice; and the time to appeal has expired; or the party unreasonably neglects to proceed. Mills v. Bliss, 55 N. Y., 139 . The case at bar is not such a case.

We have no doubt as to the defendant’s right to file the lis pendens, and think the order appealed from should be affirmed, with costs.