167 Misc. 945 | N.Y. Sup. Ct. | 1938
The defendants are the original Westchester trustees, and successor trustees, holding upwards of 450 series of guaranteed mortgages, or the real estate at one time covered by guaranteed mortgages. The original Westchester trustees employed the plaintiffs to perform certain auditing services in connection with the trust estates. The plaintiffs have been paid a substantial part of their claim for the services rendered, but assert a balance due of about $83,000, to recover which they have brought this action, claiming an equitable lien upon all of the assets of the trust estates, which lien they seek to foreclose by a sale of the assets, if necessary. The declaration of trust provides that the trustees shall not be ■personally liable for any debts contracted by them, but the same shall be paid out of the trust estates which are charged with a first hen in favor of the trustees for their security against any amounts paid for such liability. The plaintiffs have filed a notice of pendency of this action, with the result that about $35,000,000 of assets in possession of the trustees have been tied up, every parcel of real estate held by the trustees is affected, and no sale of any such real estate can be made without provision for releasing it from the plaintiffs’ alleged lien. If the complaint fails to state a cause of action affecting real property, the court has power to cancel the Us pendens. (Marpret Construction Corp. v. Hargust Land Corp., 214 App. Div. 792.) The complaint does not state a cause of action affecting the title to, or the possession, use or enjoyment of, real property. While the deed of trust gives the trustees a lien upon the assets in their possession as security against any liability
The motion to cancel the Us pendens is granted, with ten dollars costs.