Parks v. Murray — 2 N.Y. St. Rep. 135

Majority

p. 135

William F. Parks, appellant, v. Margaurett A. Murray, respondent.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

Practice—Lis pendens—When can be cancelled—Code Civil Procedure, § 1674.

Under the Code Civil Procedure, § 1674, notice of the pendency of an action cannot be cancelled where a judgment has been recovered in favor of the defendant until after the time tb appeal has expired.

Appeal from order directing notice of pendency of action.

A. Thain, for appellant, William F. Parks.

G. S. Wilber, for respondent, Margaurett Murray.

Section 1674 of the Code permitted the notice of the pendency of the action to be cancelled where a judgment has been recovered in favor of the defendant and the time to appeal has expired. The order from which the appeal has been taken discloses the fact that the notice was directed to be cancelled because of the decision of the action on the merits in favor of the defendant. The case is therefore directly within that part of this section of the Code. The order was not made because of any unreasonable delay in the prosecution of the action, but for the reason that a decision had been made disposing of the merits in favor of the defendants. Upon this state of facts the court was not authorized to vacate the lis pendens until the time to appeal had expired.

The order being' prematurely made should be reversed,with the usual costs and disbursments.