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Bachman v. Wagner

40 N.Y. St. Rep. 757 Court N.Y. Gen. Term Decision date 1891-10-16 English

Contents

Majority

p. 757
Emil Bachman, Resp’t, v. Philip Wagner, App’lt.
(Supreme Court, General Term, First Department,
Filed October 16, 1891.)

Headnote

Lis pendens—Vendor and purchaser.
An action to establish and enforce a vendee’s lien for money paid upon a contract for the sale of land where the vendor is unable to give good title, is an action affecting the "title to, or the possession, use or enjoyment of real estate, and notice of pendency of action may be filed therein, and when so filed the court has no power to entertain a motion to cancel it.
Appeal from order denying motion to cancel lis pendens.
Action to establish and enforce a vendee’s lien for money paid on contract where the vendor could not convey a good title.
J. A. Straley, for app’lt; F. Schaeffler, for resp’t.

In an action brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property, the plaintiff may when he files his complaint or at any time afterwards before final judgment, file in the clerk’s office of the county where the property is situated a notice of the pendency of the action, and where such notice of lis pendens is filed in such an action the court has no power to entertain a motion to cancel same. Mills v. Bliss, 55 N. Y., 139 .

The only question then to be considered is, whether the judgment sought to be recovered in this action would affect the title to or the possession, use or enjoyment of real property. The action is brought manifestly to impress a lien upon real estate and to have that lien foreclosed and the real estate sold to satisfy the same. Such an action clearly affects the title to or the possession, use or enjoyment of real estate. Tinder the guise of a demurrer to a complaint in such an action, a motion cannot be entertained to cancel a lis pendens. The right of the plaintiff to recover must be determined in a different manner.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.