Wagner v. Perry — 21 N.Y. St. Rep. 386

Majority

p. 386

Frederick Wagner, App’lt, v. John H. Perry, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Practice—Cancellation or lis pendens—Code Civ. Pro., § 1674.

Where a plaintiff refused to take an appeal to the court of appeals, from: an order of affirmance of a general term, dismissing a complaint, upon a: request made three months sifter the entry of the judgment of affirmance, Held, that the court properly directed the cancellation of a Us pendens, on. the ground that the plaintiff unreasonably neglected to proceed in ther action.

Appeal from order of the special term, cancelling and discharging upon the records of the county'clerk’s office the notice of pendency of this action.

Charles Miehling, for app’lt; J. JR. Marvin, for resp’t.

This .action was brought to recover $250 paid by the plaintiff to the defendant, on account of the purchase by the former of a house and lot in this city, and $120.31 in money paid by plaintiff for examining the title to said premises, with interest.

At the time of the commencement of the action a notice-of lis pendens was filed in the office of the clerk, etc. The-action was tried in July, 1887, and judgment entered in August, 1887, dismissing the plaintiff’s complaint^ The plaintiff appealed to the general term, where the judgment was affirmed and judgment of affirmance entered on the 9th of March, 1888. At the time of making this motion, namely, June, 1888, the plaintiff had not appealed to the court of appeals, and had refused to take such appeal, the defendant having requested him so to do in order that he might move to dismiss the same, claiming that the action was not appealable to the court of appeals, without leave-of the general term. The defendant thereupon moved for-

p. 387

an order cancelling the notice of lis pendens, which motion was granted, and from the order entered thereon this appeal is taken.

By section 1674 it is provided that if the action was settled, discontinued or abated, or final judgment ■rendered against the party filing the notice, and the time to appeal has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may direct that the notice be cancelled.

Under the facts above stated it is clear that the sole •object of the plaintiff, by his notice of pendency of action, was to harass and annoy the defendant and tie up his property, and that his neglect and refusal to take the appeal, as requested by the defendant’s attorney, was unreasonable, and he therefore brought himself within the provisions of the Code authorizing the court to cancel the notice where a plaintiff unreasonably neglects and refuses .to proceed in the action.

The order should be affirmed, with costs.

Bartlett and Daniels, JJ., concur.'