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Willis v. Bellamy

53 N.Y. Super. Ct. 94 21 Jones & S. 94 Court N.Y. Super. Ct. Decision date 1886-03-01 English

Delivered by O’Gormax, J.

Contents

Majority

p. 94
CHARLES F. WILLIS, Respondent, v. WILLIAM BELLAMY, et al., Appellants.

Headnote

Lis pendens—cancellation of.
In an action to compel specific performance of an agreement to convey real estate or for the return of $500 paid by plaintiff on account of the purchase price, the court at special term adjudged that defendants were unable to convey and plaintiff was not entitled to specific performance, but had a lien on the premises for said $500 and interest. This judgment the general term, on defendant’s appeal, reversed, and ordered a new trial as to some of the defendants. Pending a motion for re-argument, defendant moved that the lis pendens filed in the action be canceled.
Held, that as none of the events provided for in section let!, Code Civ. Pro., had occurred, the motion was properly denied.
Before Sedgwick, Oh. J., and O’Gorman, J
Decided March 1, 1886.
Appeal on the part of the defendants from an order denying a motion for the cancellation' of a Us pendens filed by plaintiff.
Burnett & Whitney, and Ediuard B. Whitney, for appellants.
—I. This motion was proper if plaintiff could make no further claim for a conveyance of the property in this action. The provision of Code Civ. Pro. § 1614, as to final judgment is new, and has not previously been construed. But it need not be construed to require a final judgment terminating the whole litigation, as distinguished from the particular Us, which is referred to in
p. 95
the notice as pendens. A statute is to he construed according to its intent—to the mischief aimed at, and the remedy sought. The mischief aimed at by the new provision of the Code, was that no provision existed for removing Us pendens notices after they had become useless to plaintiff, while still harmful to defendant, and this Us pendens is useless to plaintiff in any sense recognized by the law, if he can never have specific" performance. The language of the statute does not restrict the court to a needlessly narrow application of it. When an action is divisible, there may be more than one final judgment in it, as we shall see ; and the Code does not in terms call for “ the final judgment therein terminating the whole action.” As against anything but the most precise verbiage, the intent governs (Smith v. People, 47 N. Y. 330 ). Especially “the statutes regulating the mode of procedure, like all rules of practice, should be liberally construed in furtherance of justice ” (Hartnet v. Wandell, 60 N. Y. 346 ).
II. Plaintiff could make no further claim for a conveyance of the property in this action. This motion was opposed, and apparently denied, on the ground that plaintiff could raise the question of specific performance on the new trial, which has been ordered by the court on defendants’ appeal. But that portion of the judgment which denied specific performance, not having been appealed from by defendants (See Willis v. Bellamy, 52 Super. Ct. 373), was not before the court; and the court did not have any jurisdiction to consider it (Kelsey v. Western, 2 N. Y. 500 ). Nor did the court consider it. Their order was “ that the said judgment, so far as appealed from by said defendants, be reversed, a new trial ordered,” &c. The plaintiff and the court below apparently fell into the error of following the cases which hold that a new trial ordered in an action at law, must be a new trial of all the issues. See Story v. N. Y. & Harlem R. R. Co. ( 6 N. Y. 85 ).. -This is because a judgment at law is a unit; for the same reason, such a judgment
p. 96
cannot be partially reversed, and cannot be partially appealed from (Cromwell v. Burr, 12 Week. Dig. 120). If this technical rule applied to all judgments, the Code Would not expressly provide for partial appeals (§ 1300),' and for partial reversals (§ 1317). The rule is so technical and arbitrary that it is not to be extended. It is not extended even to judgments at law covering several causes of action, which have frequently been affirmed as to one cause of action, while a new trial is ordered as to another. See Lawson v. Pickney (40 Super. Ct. 187) ; Goodsell v. Western Union Tel. Co.[1] It has never been carried further than to deny the right to split a single legal cause of action involving various items, as in Wolstenholme v. Wolstenholme File Manufacturing Co, ( 64 N. Y. 272 ). And the opinion in that case concedes the propriety of a partial reversal of an equitable judgment. When the reversal is partial, the new trial is, of course, partial also (Adair v. Brimmer, 95 N. Y. 35 ). The fact that the question was still open in this court, whether the whole complaint shall be dismissed as against the defendants Anna M. Bellamy and Katharine B. Johnson, cannot affect the decision of the present motion. That question turns upon plaintiff’s claim to make the amount of his $500 deposit a lien upon their land, and recover it from them ; which claim is so totally inconsistent with specific performance, that entering judgment for the one relief waived the other (Murphy v. Spaulding, 46 N. Y. 556 ). It may be suggested that the special term held it proper under the complaint to grant specific relief against the land—namely, to make the $500 a lien upon it. It would be proper to consider such a suggestion if the notice were a notice of that claim. Such a notice would be not only inconsistent with, but vastly less harmful to defendants f.ha.n the present notice of claim for the whole land.
III. The court below has not exercised its discretion, one way or the other, denying the motion as premature.
p. 97
William Settle, for respondent.

By the Court.

The question in dispute in this case is whether a notice of lis pendens, duly filed, should be cancelled before the entry of final judgment in the action.

A motion by defendants for cancellation of the lis pendens here, was made at the special term of this court and denied, on the ground that the motion was premature, and from this decision the defendants appeal.

It was a matter resting in the discretion of the court, and the decision should not be disturbed without manifest cause.

The action was to compel specific performance of an agreement to convey title to real estate, or for the return to plaintiff of $500 paid on account of the purchase money. The action was tried at special term, and the court adjudged that the defendants were unable to convey, and that the plaintiff was not entitled to specific performance, but had a lien on the premises in question for the money so paid by him, with interest. From this judgment, the defendants appealed to the general term of this court, by whom the judgment was reversed and a new trial was ordered as to some of the defendants. An application was afterwards made to the general term for re-argument, which has not yet been decided.

The Code of Civil Procedure provides in section 1674 that after the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice of lis pendens and the time to appeal has expired, . . . the court may, in its discretion, on motion, direct that the notice of lis pendens be canceled of record.

None of these events has taken place in this action.

The right to file a notice of Us pendens is statutory (Code, § 1670), and the provisions of the statute should be strictly followed in all their essential requirements.

p. 98
, The order appealed from must be affirmed, with $10 costs.

Sedgwick, Oh. J., concurred.

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