Woodenbury v. Spier

106 N.Y.S. 817 | N.Y. App. Div. | 1907

Gaynor, J.:

On. the contract day the plaintiff refused to take title on 'the-grounds (1) that there was an existing violation of the tenement house act in respect of the property, which- was a tenement house, viz., in that the water closets were in the -yard instead' of in the house, as required by the said act, and (2) that in an action entitled the Tenement House Department of the City of New York against Harris Horowitz and Samuel Melson a lis-pendens had been filed against "the property on June 4th, 1904. Mo complaint' in such action has ever been filed or served, and the defendants therein did not. own. the land at the time of .such filing, having conveyed the, same on May 16th, 1904, to the defendant; aiid the deed was recorded .next day. The lis pendens says the action is “for the' enforcement' of sections 100, 102, 103, 109, 99, 126 of the Tenement House Act, and the removal of violations, of the. same and to i’ecovef against the said defendants “ the penalty incurred by Such violations and the costs of this action or proceeding". These sections prescribe how sinks shall be constructed, for the removal of privy vaults, for the whitewashing of cellar walls, the repair oroofs and for receptacles for ashes and garbage.

That the water closets were in the yard instead.' of the house, or that, there Were other defects or lack of improvements or repairs,was.no defect of title. The contract was to purchase the house just as it. was, and it did not .matter how defective or tumble down it’ might be. - ■

■ The Us pendens. was no encumbrance. It is given only the “ same force and effect as the notice of pendency of action provided for in the Code of Civil Procedure ” (Tenement House Act, §130), and it lias, none unless the complaint be filed, with it as the' Code requires (§ 1670 ; Weeks v. Tomes, 16 Hun, 349 ; Albro v. Blume, 5 App. Div. 309). And no lien could be got on the land under it in the suit in which it was filed, for the defendants therein "did not' own the l'and when .the suit was-brought.

The plaintiff not only refused-do take title for no reason, but neglected to. bring this suit for nearly-two years and a half, during which time the' defendant spent $4,000 in improving, liis house. The plaintiff is. entitled to no relief. ..;

The judgment should be reversed on both the law and the facts,

Woodward, Jenks,- Hooker and High, JJ,, concurred.

Judgment reversed on the Jaw and the facts, and new trial granted, costs to abide the final award of costs.-.