Majority
p. 497Charles De Kay Townsend, App’lt, v. Emma M. Work, Impleaded, etc., Resp’ts. (Supreme Court, General Term, Second Department, Filed June 18, 1894.)
Headnote
Mechanic’s lien—Cancelling lis pendens.Notice of Us pendens will be cancelled for unreasonable delay, where plaintiff, in an action to foreclose a mechanic’s lien, neglects for more than a year to proceed after the complaint has been dismissed by the referee as against the owner of the premises.
Appeal from an order cancelling Us pendens.
■ Mortimer 8. Brown, for app’lt: Marbury & Fox (Charles Fox, of counsel), for resp’ts.
—This is an appeal from an order directing the cancellation of the notice of Us pendens filed in the action. The action is by the assignee of a mechanic’s lien to procure the foreclosure thereof. A referee was appointed on the 29th day of November,
p. 498
1892, to hear and determine the action: and the trial proceeded before him until the 29th day of March, 1898, when the complaint was dismissed, as against the defendant Emma M. Work, the owner of the premises. After such dismissal, no lien could be established against the property ; and the only reason for the continuation of the action was to enable the plaintiff to appeal from the judgment to be entered upon the report of the referee, when it should be made. In that situation the plaintiff was required to use active diligence to bring the trial to a close, to the end thatanappeal could be taken. Instead of activity, there was a delay of one year before the order was made from which this appeal is taken. In the meantime the plaintiff received an admonition from the court when the order for the cancellation of the Us pendens was denied, in December, 1892, with leave to renew the motion unless the plaintiff proceeded diligently with the action. We think the plaintiff has unreasonably neglected to proceed in the action, within the intention of § 1674 of the Code of Civil Procedure, and that the order should be affirmed, with $10 costs and disbursements. All concur.