87 N.Y.S. 742 | N.Y. App. Div. | 1904
Lead Opinion
The action was in ejectment in which the plaintiffs filed a notice of Us pendens. After a trial, a verdict of a jury having been rendered in favor of the defendant, a judgment was entered dismissing the complaint upon the merits. The plaintiffs appealed to to this court,' but their appeal was dismissed for failure to prosecute it. The defendant thereafter moved for an order canceling the notice of pendency of the action, which motion was denied, and from the order entered thereon the defendant appeals.
Section 1674 of the Code of Civil Procedure provides that “ after the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of any person aggrieved,” direct that the notice be canceled.
The learned judge at Special Term placed his denial of the motion upon the ground, firsts that the judgment in the ejectment suit was not such a final judgment as entitled the defendant to have it canceled, and, further, that even though it were to be regarded as a final judgment, it was still discretionary with the court as to whether or not it would direct its cancellation. In this latter view we think the learned judge inadvertently fell into error, because a reading of the section will show that the conditions or circumstances under which the notice may be canceled are disjunctive,, and that the court is only given a discretion as to whether it will or will not direct the cancellation in cases where the ground relied upon is that the “ plaintiff filing the notice unreasonably neglects to proceed in the action.” Where the ground relied upon on the motion to cancel is the unreasonable neglect “to proceed in the action,” there the judge before whom the motion is made is called upon to exercise a legal discretion in determining whether or not he will grant the motion. In the other instances enumerated in the section (1674), if the action has been “settled, discontinued, or abated, or final judgment is rendered therein against the party fifing the notice, and the time to appeal therefrom has expired,” then the defendant is entitled as matter of right to have the notice canceled.
The question, therefore, for our determination is whether the
Thus it appears that the view taken, that here there was not a final judgment, is based upon the fact that it is not conclusive upon the rights of the parties. To apply the latter test to a judgment, for the purpose of determining whether it is or is not the final judgment referred to in section 1674 of the Code, is giving to that section a construction which its language does not warrant and which under the authorities cannot be supported. In .Black on Judgments (§ 21) it is said : “A final judgment means not a final determination of the rights of the parties with reference to the subject-matter of the litigation, but merely of their rights with reference to the particular suit.” And in Freeman on Judgments (§ 16): “ According to the common law rule by a final judgment is to he understood, not a final determination of the rights of the parties, but merely of the particular suit.” And Doorley v. O' Gorman (31 App. Div. 216, 218; 27 Civ. Proc. Rep. 345) this court had occasion to examine into the history of the action of ejectment,. and while not a direct authority upon the precise question here involved, it is instructive with respect to the view taken as to the nature of a judgment entered after a trial. Therein it was said : “ At common law a judgment in an action of ejectment was not conclusive except as to the demise laid in that action, and as many qther actions upon a new demise could be brought between the same parties as the plaintiff desired. (Adams Eject. 192, 315.) To prevent this endless litigation it was provided by the Revised Statutes
As tending to show that there is no distinction in the binding force and effect of a judgment in ejectment and a judgment in any other class of actions, we have the cases of Beebe v. Elliott (4 Barb. 457) and Gates v. Canfield (2 Civ. Proc. Rep. 255).
There is no claim that the form of judgment entered in an action of ejectment should contain,( nor is there any pretense that the judgment here involved did contain, any provisions which in that action required further litigation. So far as the parties to it were concerned, the judgment was final and was the termination of the action; and the fact that by other provisions of the Code of Civil Procedure a new trial might be had under certain conditions within three years did not continue the suit as a pending action. On the entry of the judgment, therefore, and after the plaintiffs’ appeal had been dismissed for failure to prosecute it, the action in which the notice of lis pendens was filed had been terminated; and the fact that the judgment was subject to be set aside on certain conditions being complied with did not destroy its character as a final determination in that particular suit of the rights of the parties.
Patterson, McLaughlin and Laughlin, JJ., concurred.
Concurrence Opinion
I concur in this opinion, and also think that as matter of discretion the Us pendens ought to have been canceled.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.
