Beman v. Todd — 35 N.Y. St. Rep. 214

Majority

p. 214

Warren Beman, App’lt, v. Louis L. Todd, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed January 14, 1891.)

Headnote

1. Lis pendens—Cancellation.

In an action brought to charge certain lots with the payment of $40," 000 or so much as should be found due plaintiff on an accounting, alleged to have been wrongfully invested by defendant in those pieces of real estate, the right of plaintiff to file a lis pendens is an absolute one not resting in the discretion of the court, but conferred by statute, and having been properly filed it cannot be cancelled except pursuant to § 1674 of the Code of Civil Procedure.

2. Same.

Where no motion was made for an order directing the amendment of the complaint or of the lis pendens, and the record does not disclose the existence of any of the causes prescribed by § 1674 for cancellation of the notice, or that either counsel was heard upon the question, the geneial term is without power to direct that the notice of pendency be so amended as to cancel or destroy it.

3. Appeal—Stipulation.

When an appeal is taken from a provision inserted in an order granting a new trial which the court had no authority to make because the question so decided was not presented by the record, the stipulation that if the order appealed from is affirmed judgment absolute shall be rendered against appellant need not be given.

Appeal from certain provisions of an order of the general term of the first judicial department, reversing a judgment entered on the report of a referee and granting a new trial.

Moody B. Smith, for app’lt; J. Warren Greene, for resp’t

This action was brought to charge a lot on Twenty-seventh street, two lots on Forty-first street and one lot, on Broadway, in the city of New York, with the payment of $40.- ' 000 or so much as should be found due the plaintiff on an accounting, alleged to have been wrongfully invested by the defendant in those pieces of real estate. The action was tried before a referee, who made a report directing that the complaint be dismissed on the merits, with costs, on which a judgment was entered which' was reversed by the general term and a new trial granted, costs to abide the event, for an error committed by the referee in requiring the plaintiff to call and swear Mr. Woodward as a witness.

p. 215

The order appealed from granted a new trial to be had before a referee named in it, with costs to abide the event, but in addition it directed that the complaint and notice of pendency of action be amended by striking out all allegations concerning the lots on Twenty-seventh, Forty-first streets and Broadway, thus depriving the plaintiff of the right of establishing any lien upon those lots in case he should succeed in the action. From this part of the order the plaintiff appealed to this court. This action is one in which the plaintiff had the right to record a notice of its pendency. Code Civ. Pro., § 1670 ; Mills v. Bliss, 55 N. Y., 139 . This right was an absolute one not resting in the discretion of the court but conferred by statute, and having been properly filed it cannot be can-celled except pursuant to § 1674 of the Code of Civil Procedure. Mills v. Bliss, supra; Wilmont v. Meserole, 9 J. & S., 274; Brainerd v. White, 16 id., 399; Niebuhr v. Schreyer, 13 Daly, 546 ; 1 N. Y. State Rep., 626.

27o motion for an order directing the amendment of the complaint or of the lis pendens was made, and the record does not disclose the existence of any of the causes prescribed by § 1674 for the cancellation of the notice nor does it disclose that either counsel was heard upon the question. "Upon such a record and under such circumstances the general term was without power to direct that the notice of the pendency of the action be so amended as to cancel and destroy it.

The objection is made that the plaintiff did not stipulate that if the order appealed from is affirmed judgment absolute shall be rendered against the appellant as required by subd. 1 of § 191 of the Code of Civil Procedure. It will be observed that the plaintiff has not appealed from that part of the order granting a new trial, or from any portion of it which the general term had power to grant, but limited his appeal to the clause which, in effect, cancelled the notice of the pendency of the action and amended the complaint without a hearing. When an appeal is taken from a provision inserted in an order granting a new trial which the court had no authority to make because the question so decided was not presented by the record, the stipulation need not be given. The part of the order appealed from should be reversed, with costs.

All concur.