38 N.Y.S. 164 | N.Y. App. Div. | 1896
Lewis Selye of Rochester, M. Y., deceased was the owner of about thirty-two acres of land in the city of Rochester of great value. He. died intestate, leaving as his heirs at law his granddaughter, Josephine S. Parker, the plaintiff and appellant here, and his son, De Yillo W. Selye; but the property was largely incumbered by various mortgages which the deceased had executed. The complaint in this action alleges in substance that on the 16th of February, 1893, the plaintiff commenced an action in the Supreme Court against ¡the said De Yillo W. Selye and the defendant Anna Selye for the purpose of asserting the plaintiff’s rights in the said real estate .and having it adjudged that she was the owner of an undivided half thereof; that such action was brought to trial on the 18tli day of Mayj 1894, and an interlocutory judgment was entered in said action by which it was adjudged that title to the premises inured to the benefit of Selye and the plaintiff as tenants in common; that on the 15th day of December, 1893,. a deed from De Yillo W. Selye to his wife (the defendant here) of twenty-one building lots, parts of said premises, was placed upon record in Monroe county clerk’s office. The complaint refers as a part of it to the complaint in the original action and to the judgment roll in that action, and states “ that said complaint and notice of pendency of the said action were filed in the clerk’s office of Monroe county on the 16th day of February, 1893;” that the plaintiff succeeded in such action, and an interlocutory judgment was entered therein adjudging her to be entitled to ail undivided one-half of the property, and requiring the said De Yillo W. Selye to account for the proceeds of that portion, of the property which he had sold under a power of attorney from the plaintiff, and that an accounting be had before Arthur E. Sutherland, as referee. By reference to the complaint in the original action it appears that the plaintiff in this action was the plaintiff therein, and that De Yillo W. Selye, Anna. C. Selye, his wife, and Selye Park Building Lot Association were the defendants. Ho relief was sought therein against the defendant in this action, nor any claim made against her, and indeed she is only mentioned in the title of the action as the wife of
The demurrer to be successful must establish the fact from the face of the complaint that another action is pending for. the same cause between the same parties. (Code, § 488, subd. 4.) .. The first action.is undoubtedly j>ending as to the defendant De Tillo W. Selye, as only an interlocutory judgment has been obtained therein and an accounting ordered preparatory for .final judgment which must be obtained before the action can be regarded as - terminated.
., The parties in the first action were the plaintiff in this, the defendant- herein with her husband and one other defendant. So far as the parties here are concerned, they may be regarded as the same parties, though not all of -the parties in the first action. . The "difficulty with the demurrer lies in the fact-that it does not appear, upon the face of the complaint that, the-present .action is for the same cause as the first. The first action,- as we have seen, was aimed at the husband, De Tillo W. Selye, -to. compel him to account for the interest of the plaintiff in the property, and in that action no relief was sought by the - complaint therein against the defendant here.' It is'true that the decision of the court and the judgment direct that she shall Unite with her husband in the conveyance as above stated’, but there is nothing in that judgment, which grants, or .anticipates thé relief sought in this action. -The relief here sought is to bind the defendant, who claims to be the grantee of her husband of a portion of the lands in controversy, by the judgment in the former action.. The deed under which . the defendant here claims . was recorded subsequent to the commencement of the. first action, and no mention thereof appears in the complaint in that -action, and the.
The learned counsel for the defendant upon the argument seemed to rely upon the allegation in the complaint of the filing of -the complaint and the notice of pendency in the first action as above quoted, and claims that under section 1671 of the Code of Civil Procedure, which provides that “the pendency of an action is constructive notice from the time of so filing the notice, only to a purchaser or incumbrancer of the property affected thereby, from and against a defendant with respect to whom the notice is- directed to be indexed, as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed or subsequently recorded is bound by all proceedings .taken in the action, after the fifing of the notice, to the same extent as if he was a party to the action,” that the defendant was bound by the proceedings in the first action. It will be seen by this section that the defendant is only bound to the same extent by this notice that she was bound by the proceedings in the former action, and as those proceedings did not embrace the deed in question, or the controversy arising thereunder, this notice does not aid the defendant. Besides, this notice only affects a purchaser or incumbrancer from a defendant with respect to whom the notice is directed to be indexed as prescribed in section 1672 of the Code of Civil Procedure, and by that section the clerk must index the name of each defendant specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff. The complaint contains no allegation that this was done or that the indexing was against the name of De Villo W. Selye, the defendant’s grantor. Indeed, this section of the Code (1671) has no application to a party to an action who has been duly served with process
The question remains whether the relief sought in this action could have been maintained in-the first, so far as it appeal's-from the. complaint in this action, and as we have reached the conclusion that, it could not,'it follows that this action is properly'maintained, and the judgment sustaining the demurrer should be reversed, with costs of this appeal and of the Special Term,'with leave to the defendant, upon the payment of such costs, to answer the complaint within twenty days after the service of the order herein upon the defendant.
All concurred.
Interlocutory judgment, reversed,.- with costs, and demurrer overruled, with costs, with leave to- defendant to answer upon payment of the costs of the- appeal and of the demurrer.
