Birdseye v. King

| N.Y. Sup. Ct. | Jan 15, 1915

GIEGERICH, J.

This application for a reargument of a motion to strike from the county clerk’s docket the lis pendens in an action brought by Clarence F. Birdseye against Henry G. King and others was referred to me by the judge who heard the application originally, with the express request that the application be considered as though it were the original motion and irrespective of any views expressed when the matter was first presented.

[1] The first question to be considered is whether the suspension of the plaintiff from practice as an attorney has the effect of preventing him from continuing to act in person in the prosecution of his suit. I am satisfied that the act of the Appellate Division in suspending him from practice was not intended to have, and doés not have, such an effect. Section 55 of the Code of Civil Procedure provides that: .

“A party to a civil action who is of full age may prosecute or defend the same in person or by attorney, at his election, unless he has been judicially declared t<ybe incompetent to manage his affairs.”

Section 65 provides:

“If An attorney dies, is removed or suspended, 'or otherwise becomes disabled/to act, at any time before judgment in an action, no further proceeding shaly be taken in the action, against the party for whom he appeared, until thirty days after notice to appoint another attorney, has been given to. that p$)/rty, either personally, or in such manner as the court directs.”

/ It is argued on behalf of the plaintiff that this provision is applicable to his case under the present circumstances. I do not think it is ' applicable. The plaintiff is not prosecuting his action as an attorney, but in his individual capacity. The fact that he is an attorney is purely fortuitous, and of no consequence whatever. His rights are no more and no less than as though he were a plumber or .an engineer, and the fact that he has been deprived of his special privilege to practice as an attorney no mpre affects his individual right to prosecute his own action than would the loss by a plumber or an.engineer of his special license or privilege deprive him of his individual right to appear for himself in legal proceedings. By the order of the Appellate Division he is “suspended from practice as an attorney and counselor at law,” but there is no prohibition against his appearing in court and prosecuting or defending an action in his individual capacity.

[2, 3] The next question is whether the motion to cancel the lis pendens should be granted. The action is not brought against the Secured Holdings Corporation, which makes this motion, but against various persons, who are charged with a conspiracy to injure the plaintiff, and the only relief demanded is a money judgment. The application has to be made as a special proceeding, because the person complaining is not a party to the action. I fail to see any ground upon which the plaintiff can base a claim to a right to a lis pendens. Section 1670 of the Code of Civil Procedure defines the cases in which a plaintiff has such a right as follows:

“In an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of, real property, if the complaint is verified the plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file, in the clerk’s office of each county where the property is situated, a notice of the pendency of the action, stating the names of the parties, and the object of the action, and containing a brief description of the property in that county, affected thereby.”

It needs no argument to show that a plaintiff who brings an action for a money judgment is not within the provisions quoted. The motion for a reargument is therefore granted, and the original motion to cancel the lis pendens and strike it from the county clerk’s docket is granted, with $10 costs against Clarence F. Birdseye.

Settle order' on notice.