50 N.Y.S. 690 | N.Y. Sup. Ct. | 1898
The court is not authorized, on a motion, to can-' • cel a notice of the pendency of an action, properly filed, unless the moving party presents a case authorizing the cancellation within the terms of section 1674 of the Code of Civil Procedure. Beman v. Todd, 124 N. Y. 114.
Under the section referred to, the defendant in the case at bar was bound to show that the time to appeal from the judgment had expired. No such proof was given,, and in fact the timé to appeal had not expired and an appeal has since been taken. Moreover under that section the application should have been made on notice.
The ex parte order of March 1,1898, is, therefore, clearly wrong in so far as it vacated the notice of the pendency of the action. In so far as it discharged the mechanic’s lien, a further question arises. Here again the statute directs in what cases the lien may be discharged. Sections 18 and 19 of the Lien Act of 1897 (chap. 418) prescribe the cases in which this may be done, and an additional provision will be found in section 3417 of the Code of Civil Procedure as enacted by chapter 419 of the Laws of 1897. The discharge .of the mechanic’s lien in question was not authorized by anything contained in these statutory provisions.
. Moreover in the case at bar, the rights of the plaintiff, under his notice of the pendency of the action, are so. interwoven with his rights under the mechanic’s lien filed, that, even if there were inherent power in the court to discharge the mechanic’s lien independently of all statutory provisions, such an order should not' be granted as long as the notice of the pendency of the action cannot be canceled.
The order of March 1, 1898, must be vacated and set aside and the clerk directed to reinstate, by proper entry, the notice of the pendency of the action and the lien. But the order to. that effect should not be directed to be entered nunc pro tunc.
Ordered accordingly.
