204 A.D. 750 | N.Y. App. Div. | 1923
This action was brought to have plaintiff declared to be entitled to an undivided one-third interest in certain real property. The complaint sets forth the making of an agreement between plaintiff and defendants Minskoff and Leibman, whereby they mutually
It is apparent that what plaintiff seeks is to specifically enforce his claim for an undivided one-third interest in the property in question. The other relief demanded is only incidental thereto.
In Wolinsky v. Okun (111 App. Div. 536) this court said: “ The nature of the action must be determined by the complaint, and where the complaint demands a judgment which would insure to the plaintiff the specific real property therein described, the case is not one in which adequate relief can be secured to the plaintiff by a deposit of money or the giving of an undertaking * * *. Where there is an issue presented which involves the right of the plaintiff to specific real property, -adequate relief cannot be secured to the plaintiff by a deposit of money or by the giving of an undertaking, and the notice of pendency of action should not be canceled.” (See, also, McCrum v. Lex Realty Co., 113 App. Div. 58; Mulholland v. Reid, No. 1, 165 id. 862; Cosmos Holding Corporation v. Casco Traders, Inc., 204 id. 861.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Page, Merrell and McAvoy, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.