98 N.Y.S. 1021 | N.Y. App. Div. | 1906
- This is an appeal by the plaintiff from an order canceling a Us pendens filed by him in an action brought for the specific performance of a contract for the conveyance of. real property, upon condition that the. defendant - Frazier either deposit in court the sum of. $25,00,0, oiy at his election,, file an undertaking in said sum for the payment of any amount which the plaintiff may recover in this action, and to pay the .judgment sought to be enforced against the real.propertv in. the event that final judgment shall be rendered against said defendant Frazier. • .
Section-1670 of the Code, of Civil Procedure provides fhat “ in an action brought to recover a judgment affecting the title to, or the possession, úse or enjoyment of, real property * * * the plain
In Bresel v. Browning (109 App. Div. 588) this court held that where it manifestly appeared from the complaint that the plaintiff could never obtain a decree for-specific performance, the court at Special Term should have permitted the cancellation of the lis pen-dens upon complying with the provisions of section 1671 of the Code of Civil Procedure. The facts were that the actual dimensions'of the premises were not as set forth in the terms of sale, and the land was subject to a covenant to pave and repair the street in front thereof. We said that “the defendant cannot increase the dimensions of the land, and if thejre be a covenant running with it to pave and keep in repair the street in front, the defendant is quite powerless to rid the land of it. The most, therefore, that the plaintiff can expect is to recover his damages, if any, together with the
In Lindheim & Co. v. Central Nat. Realty & Construction Co. (111 App. Div. 275; 97 N. Y. Supp. 619) we said, upon a review of the cases, that on a motion to cancel a lis pendens we are not . authorized to look- into’the facts as upon a trial, nor to search the ' complaint as upon a demurrer, citing Mills v. Bliss (55 N. Y. 139; Brainerd v. White (12 Abb. N. C. 407); Brox v. Riker (56 App. Div. 391), and St. Regis Paper Co. v. Santa Clara Co. (62 id. 538).
■ The learned court at Special Term has examined the complaint as if Upon demurrer and, concluding that specific performance would-hot be decreed, has fixed upon an amount which in its opinion fúr- ■ nishes,.adequate security for any judgment that might be obtained. But we do not think such questions were properly before it, and indeed the appellant complains that • the question decided was not made upon the oral argument and,'the point decided herein not hot having been made, the decision was arrived at without hearing-plain tiff’s counsel upon,that question at all. As stated by the Court of Appeals in Mills v. Bliss (supra): “ Whether the action can be sustained is not a question to be passed upon on this appeal. The plaintiff may fail to prove the facts alleged, or the court ,may hold that ..the, action is untenable upon the facts stated.:. * * The question's of fact as well as of law must be disposed of upon the trial.and hearing of the cause:” '
The order appealed from should be reversed, with ten dollars
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.