116 Misc. 475 | N.Y. Sup. Ct. | 1921
This action affects eight pieces of property in which the plaintiff claims an interest. The complaint alleges that these parcels were con
It is true there are decisions to this effect. Lipschitz v. Watson, 113 App. Div. 408; Cohen v. Biber, 123 id. 528. But there are other decisions to the contrary. These hold that the cancellation is not a matter of right and that the court has discretion and should grant the application only when the neglect to proceed has been unreasonable. Levy v. Kon, 114
Section 1670, which provides that the action must be commenced within sixty days, does not prescribe any penalty nor state the result that shall follow if that be not done. The right to file such a notice having been given by statute it can be canceled only as provided by statute. Beman v. Todd, 124 N. Y. 114; Wilmont v. Meserole, 9 J. & S. 274; Mills v. Bliss, 55 N. Y. 139; Niebuhr v. Schreyer, 13 Daly, 546; Fitzsimons v. Drought, 15 App. Div. 413. Section Í674 prescribes how and when such a notice may be canceled. It says “After the action is settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as may be directed or approved by it, direct that notice of the pendency of an action, filed as prescribed in the last four sections be canceled of record * * Under this if the party filing the notice “ unreasonably neglects to proceed in the action ” the court may cancel the notice. But there is no absolute right to such a cancellation. It may be done only in the court’s discretion.
I think the sound rule is that when a notice of pendency of action has been properly filed, that is, when it is filed in one of the actions specified in section 1670 it can be canceled only in the manner prescribed by section 1674. It may be that if such a
The case of Cohen v. Biber, supra, was decided by the same Appellate Division which decided Levy v. Kon and Steinmetz v. Kindred, supra. And although the Cohen case was decided later than the other two no mention of either of them is contained in the opinion. Nor does the opinion refer to section 1674. It cites as authority for the position taken only one case — Brandow v. Vroman, 22 Misc. Rep. 370. But that involved merely a motion to set aside the service of a summons. The question of cancelling the lis pendens was not before the court. The court there did say that the lis pendens had lost its effect because of the failure to begin an action within sixty days, but that was no part of the decision. And the court there further said that a new lis pendens might be filed. But the law seems to be that if a lis pendens has been canceled because of-the failure to commence an action another one cannot be filed. Cohen v. Ratkowsky, 43 App. Div. 196; Lipschutz v. Horton, 55 Misc. Rep. 44. So the cited case was really no authority for the decision in Cohen v. Biber. And furthermore it must be supposed that the same court did not intend to reverse a prior decision which it had made without at least mentioning it. In Lipschitz v. Watson, supra, there were no citations and that decision may well have gone upon the ground that there had been unreasonable neglect to proceed, as the papers on file show that to have been the fact. And the same court which decided those four cases in deciding a still later one (Bancroft v. Interborough
Another thing may be pointed out. Section 1670 provides that “ personal service ” of the summons must be made within sixty days after the filing, or within that time “ publication of the summons must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor, * * No provision is made in case the summons cannot be personally served or an order for its publication cannot be obtained and where the only method of service might be the substituted one provided by section 435. That section covers the case of a resident defendant who is avoiding service, which is the situation presented here. Personal service was impossible. An order for service by publication could not be obtained. If defendant’s contention be upheld it would only be necessary for a resident defendant to evade service during the period of sixty days to be absolutely relieved of the effect of the notice. This could never have been the intention of the legislature. And no such result follows a holding that a notice properly filed can only be canceled under the provisions of section 1674. Motion denied.
Motion denied.