137 Misc. 285 | N.Y. Sup. Ct. | 1930
Prior to the amendment enacted at the last
session of the Legislature (Laws of 1930, chap. 287, effective April 3, 1930), section 124 of the Civil Practice Act permitted the court (except in actions to foreclose a mortgage or for the partition of real property or for dower) to cancel a Us pendens where “ it shall appear
The amendment is, however, susceptible to grave abuse in the contrary direction to the extent that honest and bona fide claimants may be deprived of their right to an interest in, or the enjoyment of, specific real property by the cancellation of a lis pendens and the substitution of an undertaking in an amount fixed by the court. The power to cancel the notice of pendency of action in actions affecting the title to specific realty is one which should, therefore, be exercised with the greatest caution and in none but the most obvious cases of injustice to the property owner. The instant case appears to be a proper one for the invoking of the amendment.
The plaintiff is suing in ejectment to obtain the possession of premises leased to its assignor in April, 1920, for a term expiring on September 30, 1940. It appears that the lease referred to was