Cohen v. Biber

108 N.Y.S. 249 | N.Y. App. Div. | 1908

Woodward, J.:

The plaintiff on the 26th day of June, 1907, brought an action for the specific performance of a contract against the defendants, and on that day filed the summons and complaint with its lis pendens in the office of the clerk of Kings county. On tlie 17th day of August, 190,7, the summons and complaint were delivered to the sheriff of Kings county for service, but said summons and complaint were not, in fact, personally served upon the defendants within the sixty days prescribed by section 1670 of. the Code of Civil Procedure, and a motion to have the lis pendens canceled was made, and the plaintiff appeals from the order granting the same. The plaintiff contends that, as the summons and complaint were delivered to" the sheriff within the sixty days, they have not unreasonably delayed the action,- and that it was error on the part of the court at Special Term to cancel the Us pendens. The theory of this contention is that there is an analogy between this case and those cases in which it has. been held that an action was commenced, to save it from the bar of the Statute of Limitations, when the summons was delivered to the sheriff with" the intention of having the same served. ■ We are unable to see the force of this contention. The filing of a Us pendens, which is notice to persons not parties to the action, is a privilege granted by statute. One of the conditions is that where the Us pendens is filed with the complaint before the service of the summons (which is the case before ns) “personal service of the summons must be;made upon a defendant, within sixty days after the filing,” etc., and if the service is not made, within that time it does not have any effect upon the jurisdiction of- the court), but it does operate to nullify the Ms pendens on file. (Brandow v. Vroman, 22 Misc. Rep. 370; revd. on another point, 29 App. Div. 597.) If the Ms pendens bécorries a' nullity by reason of the failure of the .plaintiff to-personally serve .the sum-, mons within the time fixed - by the statute, then the defendants are clearly entitled to have the same canceled 'of record. ■' The plaintiff, accepting a' privilege, is bound to conform to the terms of the privilege, and this is not dope by placing the-sum-'-, mons in -the hands of the sheriff for-service within the, sixty, days the requirement' is for a personal service, or for the commencement ■ of publication or other method of substituted service. A Ms pen-dens is not the commencement of an action as ; against the .defendants ; it is a mere notice to outside parties that such an action is' about to be or actually has been commenced, while the delivery of -, a snmmbn's to a sheriff for the purpose of service is an, election on the part of the plaintiff to commence -his action, and is sufficient to ■ protect him in his rights as against a statute of limitations, which is a statute of repose, and forbids a remedy after the expiration-of the time fixed, In the one case' the law seeks to give a-privilege under' conditions; in the other it takes away a right,' and in such, cases it. is entirely proper that any act on the. part of -the plaintiff which-commits him to his action shall be sufficient to preserve to him his cause of action. The plaintiff still has. his cauS'e of action ; he has, • by his own neglect, waived the protection 'of his Ms pendens, and' he has no right to complain of the action of the court in canceling it of record. , ■

The order appealed from should be affirmed, with costs.

Jenks, Hooker, Rich and Miizler, JJ.,- concurred.

Order affirmed, with ten dollars costs and disbursements.