Lead Opinion

Van Voorhis, J.

This appeal concerns the construction of section 120 of the Civil Practice Act. Special Term granted defendants’ motion to cancel a notice of lis pendens but on the filing of an undertaking for $10,000. Both sides appealed to the Appellate Division, the plaintiffs being aggrieved by the cancellation of the lis pendens and the defendants by so much of the order as directed the filing of the undertaking as a condition of the cancellation. The Appellate Division reinstated the lis pendens. Only the defendants appeal to this court.

Both Special Term and the Appellate Division considered that the filing of the lis pendens was proper, differing only concerning whether it should be lifted by the substitution of an undertaking for $10,000.

In our view section 120 of the Civil Practice Act does not entitle plaintiffs to file a lis pendens and it should have been cancelled unconditionally. The complaint alleges that defendants, owners and developers of a subdivision adjoining plaintiffs’ real estate, collected and diverted surface water, dumping it on plaintiffs’ property to their damage. A mandatory injunction is sought to compel the elimination of the conduits through which it is alleged that the surface water was dumped on plaintiffs’ land and the complaint asks for damages and other relief.

The notice of pendency was filed by plaintiffs against the tract of land owned and being developed by defendants, on the theory that the judgment which they seek would limit the use which defendants could legally make of their land and that consequently it would affect “ the title to, or the possession, use or enjoyment of real property ” within the authorization of section 120 of the Civil Practice Act.

It goes without saying that this is not the classical case of authorization to file a lis pendens. Plaintiffs are claiming no *305right, title or interest in the lands of defendants against which the Us pendens was filed; they simply contend that defendants have created a nuisance to the detriment of plaintiffs’ land by collecting and dumping surface water on it. This is actionable, not in order to determine a claim of title to real property but as a tort (Noonan v. City of Albany, 79 N. Y. 470).

The cases hold that a notice of Us pendens cannot be filed where the party who has filed it claims no right, title or interest in or to the real estate against which it is filed, and where the suit concerns simply some encroachment or wrong perpetrated by defendants on plaintiffs’ land (Hailey v. Ano, 136 N. Y. 569, 575-577; O’Connor v. Long, 283 App. Div. 887; Starkie v. Nib Constr. Corp., 235 App. Div. 699; McManus v. Weinstein, 108 App. Div. 301; Ackerman v. True, 44 App. Div. 106; 120 App. Div. 172,174-176).

Plaintiffs are claiming no interest in defendants’ tract of land, they merely seek to prevent defendants from committing a wrongful act against plaintiffs. It does not give a right to file a Us pendens that the wrong is perpetrated by defendants in order to benefit their own real estate. The usual object of filing a notice of Us pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim. This is not that kind of situation. The object of plaintiffs here is either merely to embarrass the defendants or to tie up their real estate so as to obtain security for the payment of a judgment for damages if they succeed in obtaining it. If it could be shown that defendants were about to render themselves judgment proof by transferring property in fraud of creditors, an attachment might be obtained, but that is not what is being done here. The theory of preventing sales of lots in the tract by defendants by a Us pendens is not that defendants are likely to become insolvent but rather that there is an issue affecting the title or right to enjoyment of the defendants ’ real property.

Cases involving restrictive covenants against the subject property or use in violation of zoning restrictions are irrelevant (Penataquit Assn. v. Furman, 204 Misc. 960, affd. 283 App. Div. 894; Ottinger v. Arenal Realty Corp., 146 Misc. 847). Restric*306tive covenants relate to rights in the subject property (Schwab v. Whitmore, Rauber & Vicinus Co., 245 App. Div. 174).

Bienstock v. Nista Constr. Co. (225 App. Div. 534) does not support plaintiffs’ contention. There the plaintiff claimed a right in defendants’ adjoining land for the construction of a retaining wall thereon to afford the plaintiff lateral support for her premises. That ease related to a claim by a plaintiff in property of defendants against which the lis pendens was filed. Lerrberger v. Hennessey Realty Co. (154 App. Div. 158, affd. 214 N. Y. 659) involved a similar situation.

Here there is no possibility that a transfer of defendants’ lands would entitle the purchaser to continue the nuisance. The conduits whereby the surface water is impounded and cast upon plaintiffs’ land are in existence, they are open and notorious and could not in any event be maintained by a purchaser in the absence of consent by plaintiffs to receiving the surface water if the allegations in the complaint are established in an injunction action against the purchasers. A cause of action for damages would still lie against the defendants who constructed the conduits as well as against purchasers for an abatement of the nuisance and further damages if they continued to dump their surface water on plaintiffs without the latter’s consent An action to abate a nuisance is not one affecting the title to, or the possession, use or enjoyment of real property. To hold that the defendant owners may not wrongfully use their property to the injury of their neighbors does not involve the kind of restrictions on use or enjoyment designed by section 120 of the Civil Practice Act as furnishing the basis for the filing of a lis pendens.

The order of the Appellate Division should be reversed, with costs, defendants’ motion to cancel the Us pendens granted and the question certified answered in the negative.

Dissenting Opinion

Burke, J. (dissenting).

We dissent and vote to affirm. Both Special Term and the Appellate Division have found that the Us pendens had been properly filed, since a judgment rendered against the appellants might affect the use and enjoyment of the land.

We agree with the courts below. Section 120 of the Civil Practice Act, which provides that a plaintiff is entitled to file a Us pendens “ In an action brought to recover a judgment affect*307ing the title to, or the possession, use, or enjoyment of real property ”, authorized the filing of a Us pendens in this action, wherein a judgment against appellants will require the abatement of a nuisance arising out of the use of the “ Bussell Woods ” property.

Where the judgment sought is one affecting the use of the property (Pentaquit Assn. v. Furman, 204 Misc. 960, affd. 283 App. Div. 894), and where the complaint pleads a cause of action requiring a judgment enjoining the “ use ” of the real property in the lis pendens (Bienstock v. Nista Constr. Co., 225 App. Div. 534; Leerburger v. Hennessey Realty Co., 154 App. Div. 158, affd. 214 N. Y. 659), a lis pendens may be filed.

In this case plaintiffs, if they prove their case, will be entitled to injunctive relief (Davis v. Niagara Falls Tower Co., 171 N. Y. 336). The complaint seeks to restrict the use to which the “ Bussell Woods ” property is being put and demands an injunction directing a change in the condition of the land. The defendant developer of the “ Bussell Woods ” property, which adjoins property owned by plaintiffs, it is alleged, altered the contour, elevations and grades of “Bussell Woods” so that surface waters were directed towards and upon plaintiffs’ property; furthermore, by the reversal of drainage, and the construction of a conduit, defendant has trapped water and materials and channeled them to and upon plaintiffs’ property.

According to the reasoning of the appellants, purchasers of homes, including the 13 purchasers whose closings are pending, would, nevertheless, take subject to the nuisance action even though the lis pendens has been cancelled. This idea is contrary to the stated purpose of the legislation which was adopted so that judgments would affect land only if a lis pendens had been filed.

The filing of a notice of pendency of action not only was devised to guard plaintiffs’ interest in the real property which is the subject of the litigation, but also to protect purchasers by giving them notice that the land which they are buying might be affected by a judgment, later entered in a pending action, by which they would be bound.

To accept appellants’ interpretation of the statute is to disregard not only the plain language of section 120 of the Civil Practice Act, but to ignore its very purpose. According to *308appellants, a developer who created a nuisance damaging adjoining property could sell the houses owned by it in the development free from the threat of a lis pendens and thereby impose the responsibilities of correcting the nuisance on the purchasers of the houses. The judgment, when entered in the action, would affect the use of property no longer owned by the developer.

Although the filing of the notice does not bar alienation or transfer of property remaining in the ownership of the developers, it alerts the purchaser to the risks attached to the transaction and always precludes defeat of the plaintiff’s interest in the property through the alienation or transfer by defendant during the pendency of the action.

The statute when read literally provides such protection. The remedy is denied here by an interpretation inconsistent with both the language and the purpose of the statute.

Judges Fuld, Froessel and Foster concur with Judge Van Voorhis; Judge Burke dissents in an opinion in which Chief Judge Desmond and Judge Dye concur.

Order of Appellate Division reversed, with costs in this court and in the Appellate Division, and matter remitted to Special Term for further proceedings in accordance with the opinion herein. Question certified answered in the negative.