67 N.Y.S. 772 | N.Y. App. Div. | 1900
The plaintiffs, as judgment creditors, brought this action to set aside the transfer of a certain drug business, and the goods, chattels, properties, and effects belonging or appertaining thereto, made by defendant William H. Biker to the defendant William B. Biker, as made with intent to hinder, delay, and defraud the creditors of the assignor. It is alleged in the complaint that William B. Biker was the owner in fee simple of certain real estate upon the westerly side of Sixth avenue, in the city of New York, which was subject to a mortgage, and that William B. Biker, with the proceeds of the property so fraudulently transferred, paid a mortgage upon said property; and the complaint asks that it be adjudged that the plaintiffs have a lien upon said property for the amount so paid on account of the mortgage. It is also alleged that William B. Biker is the owner in fee simple of property known as 122 West Seventy-Fourth street, New York City, which said property is mortgaged for the sum of $26,000; “that the equity in said properties does not exceed the sum of $5,000, out of which plaintiffs can satisfy their said judgment against the said defendant William H. Biker, sued upon herewith, or which can be reached by execution.” And the complaint then asks judgment that, in default of said William B. Biker paying the plaintiffs’ said judgments, the said real property known as 353 Sixth avenue and 122 West Seventy-Fourth street, New York City, owned by the said William B. Biker, be declared to be impressed with a lien in favor of the plaintiffs in a sum sufficient to pay said judgments; that said property be sold, and out of the proceeds thereof to fully pay off the said judgments sued upon herein; and that the defendants William B. Biker and William H. Biker be enjoined from transferring or otherwise disposing of said
If this notice of pendency of action cannot be canceled, there has been invented a new method by which a plaintiff can, in substance, obtain an attachment against real property owned by a resident defendant; for if a creditor who has a claim against the owner of real property can, by inserting in his complaint in an action brought to recover a sum of money due from a defendant an allegation that defendant has no other property with which to- pay the claim sought to be enforced, ask that a lien for the amount of the demand be established upon such real property, and, by filing a notice of pend-ency of action, prevent a transfer of the property until he can get his judgment, he can have the real property held until the judgment is entered which will become a lien upon it. Such a notice of pend-ency, of action would be an abuse of the process, and it cannot be that the court is helpless to correct it. There is no allegation in the complaint which would justify a judgment giving to the plaintiffs a lien upon this Seventy-Fourth street property. No portion of the plaintiffs’ property alleged to have been fraudulently assigned or transferred was applied to this Seventy-Fourth street property. The plaintiffs have no lien upon this particular real estate, legal or equitable, and no fact is alleged which would justify any judgment establishing or enforcing such a lien. Upon the complaint, no judgment can be granted in any way affecting this real property, any more than there could be such a judgment if the action was upon a promissory note made by the defendants, and which plaintiffs sought to enforce by having it declared to be an equitable lien upon real property owned by the defendant. By section 1670 of the Code of ■Civil Procedure the plaintiffs were authorized to file a notice of pendency of action in an action brought to obtain a judgment affecting the title to, or the possession, use, or enjoyment of, real property. H a notice of pendency of action is filed in an action not brought to recover a judgment affecting the title to, use or enjoyment of, real property, the court can cancel the notice of pender. „y of action; but, if the action is brought to recover a judgment specified in this section of the Code, the court could only cancel the notice of pendency of action as provided for by section 1674 of the Code, namely, after the time to appeal from the final judgment in the action has expired, where the plaintiff unreasonably neglects to proceed with the action, or upon giving the security to pay the amount of the judgment or judgments sought to be enforced. Fitzsimons v. Drought, 15 App. Div. 413, 44 N. Y. Supp. 453. I think it must be apparent that upon a motion of this character the court can
It follows that the order appealed from, denying the motion to cancel the notice of the pendency of the action, is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. The appeals from the orders upon the application to resettle the order appealed from are dismissed, without costs. All concur.