
    Mishkind-Feinberg Realty Company, Respondent, v. Louis Sidorsky, Appellant.
    First Department,
    October 19, 1906.
    Real property — when lis pendens not canceled — specific performance —r pleading — defendant allowed to serve supplemental answer setting out judgment on controversy submitted —■ stay.
    In an action for specific performance when the question of the marketable title of the lands is in issue, a Us pendens filed by the plaintiff should not be canceled on the defendant’s offering to file an undertaking.
    When in an action for specific performance the court on an agreed statément of facts has adjudged the defendant’s title to be marketable and has directed the plaintiff to perform and the plaintiff has appealed to the Court of Appeals, the defendant should b.e allowed to serve a supplemental answer setting out the judgment on the controversy submitted so that it may be taken advantage of at.a subsequent trial.
    But the plaintiff should be allowed to move for a'stay pending the appeal, and the allowance of the supplemental answer should be without prejudice to such motion.
    Appeal by the defendant, Louis Sidorsky, from an order of the Supreme Court, made at the FTew York Special Term and entered in the office of the clerk of the county of FTew York on the 14th day of May, 1906, denying the defendant’s motion for leave to file a supplemental answer and for the cancellation of a Us pendens filed herein. J. A. Seidman, for the appellant.
    
      Samuel Levy, for the respondent.
   Ingraham, J.:

The defendant applied for leave to serve a supplemental answer, a copy of which was annexed to the moving papers and also for an order canceling a notice of pendency of action upon the defendant’s giving an undertaking to secure the payment of any judgment which the plaintiff might recover against him in this action. These motions Were both denied. •- So far as the motion to cancel the lis pendens was denied, we think the court was right. The action is for the specific, performance of a contract for the sale of real property. The question at issue between the parties is as to whether the title of the defendant to the property is a marketable title, and until that question is finally determined the lis pendens -should not be disturbed. This is not a case in which the plaintiff can be protected by an Undertaking, .as if the plaintiff succeeds in getting a judgment for a specific performance of the contract,, he is entitled to the property. I think, however, that the defendant should have been allowed to serve a supplemental answer.

It seems that after the action was át issue the parties agreed upon a statement of facts, and thére was submitted to this cqurt the question as to whether the de'fbndant’s title was marketable. There seems to have been no written stipulation as to what should be done ' with this action pending the final .determination of that submission ;. but it is quite clear that the parties must have' intended that the proceedings in this action should be suspended until the questions involved' in the submission were settled. The case was submitted to this court and it was determined that the defendant’s title to the property was marketable and the plaintiff was directed to specifically perform the contract. (111 App. Div. 578.) . There was a dissent, however,, and the plaintiff has appealed to the Court of Appeals from the judgment entered upon that submission. There is a question in the affidavit as to the actual pendency of the appeal at the time this motion was made5 but it app'eayéd that the plaintiff intended in good faith to appeal. The supplemental answer seeks to set up the judgment of this court upon the submission, and I think the defendant is , entitled to have that determination presented upon the record so that, advantage can be taken of it when the case is actually tried, and the order, so far as it denies the motion for leave to serve such supplemental answer, should be reversed and the defendant allowed to serve it. It is proper to state,, however, that, we think that if an appeal to the Court of Appeals is properly perfected, this. action should not be tried until that appeal is determined ; and the leave granted to serve this supplemental answer is Without prejudice, therefore, to an application by the plaintiff for a stay of the proceedings in case the defendant should mote the case, for trial before the final determination- of the appeal to the.Court of Appeals. No costs ■ aré axtarded in this court ’ or in the court below.

O’Brien, P. J., ClArke, Houghton and Scott, JJ., concurred.

Order reversed and motion granted, without costs, without prej.u"dice to the application indicated in the opinion. Settle order on notice. ' .  