99 N.Y.S. 418 | N.Y. App. Div. | 1906
We think the appellant’s motion for an order canceling the Ins pendens should have been granted. By section 1670 of the Code of Civil Procedure it is provided that while the notice of- Ms pendens paay be filed before the service of the summons,-in that ease personal service of the summons must be naade on a defendant ;within sixty days.'aftev the filing,- or else, before the. expiration of the same time, publication of the summons must be commenced, or service thereof ‘made without the State,' pursuant to an order obtained - therefor.' It is undisputed that the filing of the Ms pendens in this instance was not followed within sixty days by either' personal service or' the publication of the .summons. -
- The order dénying the motion to cancel^ the Ms pendens is - reversed, with ten dollars costs and disbursements, and the motion' granted, with costs. The appeal from the order denying the reargument and resettlement is dismissed, without costs.
Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred.
