141 N.Y.S. 110 | N.Y. App. Div. | 1913
This is an appeal from an order denying a motion to cancel and discharge of record a notice of pendency of action filed in the office of the clerk of the county of New York, on the ground that the action is not brought to recover a judgment affecting a title to, and the possession, use and enjoyment of, real property, or any interest therein. The action is brought by the plaintiffs as attorneys for William Simis, they having been retained to commence an action on his behalf against Ada L. Simis, his wife, Thomas Pepper and George T. Soper, for the specific performance of an alleged agreement by the wife to retransfer to Simis certain undescribed real property in the city of New York, and also to cancel of record certain mortgages made by the said wife in favor of the defendants Pepper and Soper, on the ground that they were fraudulent. Such an action was duly brought by plaintiffs on behalf of said William Simis, and they allege that they entered into an agreement with him in writing whereby he agreed, in the event of its settlement out of court, that he would pay them a cash fee of $7,500 for their services and disbursements as his attorneys in said action. Notice is alleged to have been given verbally and in writing to the attorney for said defendants of the existence of such agreement. It is further alleged that as a result of conferences between said William Simis and the attorney and counsel for the defendants, a settlement was reached by which Simis received a sum of money amounting to at least $2,000 in addition to an agreement to pay him $40 a month for his lifetime, in return for which Simis was to do all things necessary to procure a dismissal of his action. This agreement of settlement is charged to have been secret and collusive as to the plaintiffs, and to have been made to deprive them of their compensation for their services as attorney for the said William Simis in the action of Simis v. Simis.
While the plaintiffs demand judgment that their lien may be ascertained and foreclosed, and that they be adjudged to
The respondents undertake to justify their position by asserting that “in determining a motion to cancel a notice of lis pendens, the Court should be guided solely by the nature of the demand for judgment.” As authority for this, they cite among other cases the opinion of this court in Jones v. Armenia Insurance Company (136 App. Div. 453). That opinion is ingenuously quoted as follows: “If "* * * the,complaint demands a judgment affecting the title to or the use, possession or enjoyment of real property, then the court cannot look to see whether the cause of action set forth in the complaint is one in which such a judgment can be granted — it is sufficient if such a judgment is asked for. (Schomacker v. Michaels, 189 N. Y. 65.)” What was really said in that case is as follows: “The question that must always be presented in an action of this kind is whether the complaint states a cause of action affecting the title to real property, or the use, possession or enjoyment thereof. If it does and the complaint demands a judgment affecting the title to or the use, possession or enjoyment of real property, then the court cannot look to see whether the cause of action set forth in the complaint is one in which such a judgment can be granted — it is sufficient if such a judgment .is asked for.” .We trust that the distortion of the plain language of this opinion was not deliberate upon the'part of the counsel from whose brief we have just quoted,' but we are unable-to perceive any reasonable theory upon which it can be explained. The complaint' herein not stating a cause of action affecting a title to real property, or the use, possession or enjoyment thereof, and the prayer for relief having no relevancy to any fact set forth in the complaint, there was no justification for the filing of. thé notice of' pendency of action-and the motion to vacate the same should have been granted.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
