12 How. Pr. 215 | The Superior Court of New York City | 1856
The filing of a Us pendens is an ordinary proceeding in an action, in which it is sought to subject specific real estate to the operation of any judgment that may be recovered.
It is indispensable, in order to affect persons who may purchase pendente lite, in ignorance of the plaintiff’s claim, that it should be filed. All who take the title after a notice, in proper form, has been filed with the proper officer, take it with the same consequences that would have resulted from a purchase with actual notice.
If no injunction had been granted, the filing of a lis pendens would have secured the plaintiff such rights to it in the hands of the purchaser, as might have existed against the defendant if he had continued to own it. If the plaintiff succeeds in establishing that he is, in equity, a part owner, and that full relief cannot be secured except by a sale of it, and payment to himself of such part of the proceeds as may be required to
Although the Us pendens is an ordinary proceeding, yet it is, in this state, the subject of statutory provisions. (2 R. S. 174, § 48; Code, § 182.)
The court has certainly no power to prevent the plaintiff , from giving actual notice, if he can, to every person-who may propose to purchase. I cannot imagine any principle on which it can prevent him from giving notice in the way the statute has provided. It cannot rightfully interfere, to take from the files of the clerk of the county a paper, in proper form, and regularly filed under the authority of a statute, which is a notice, in law, to all who may purchase.
The right also existed to obtain an injunction, on presenting a case which entitled the plaintiff to it. A case was made on which the court deemed it just to grant that relief. The court, subsequently, permitted "the defendant to substitute security for the injunction, and, on the security being given, dissolved the injunction. When the court made the order dissolving the injunction, neither the court, nor the defendant knew of the lis pendens, although it had been filed months previously thereto. That order, therefore, in contemplation of the court, as in contemplation of law, was security substituted for the injunction, and that only.
I think the motion should be denied, on the ground that the court is incompetent to grant the relief sought by it.
The motion is denied, with $7 costs.
