
    James J. Kennedy, Plaintiff, v. John Hall, Defendant.
    (Supreme Court, New York Special Term,
    June, 1906.)
    Lis pendens — Commencement and pendency of action and notice — Cancellation of notice — Grounds — Pleading.
    Á motion to cancel a notice of pendency of action on depositing money or giving an undertaking is to be determined upon the allegations of the complaint; and where, in an action by the vendee under a contract to convey lands, it is alleged that the defects for which the title was rejected can be cured by the defendant and the complaint prays for specific performance, in' case the defendant becomes able to perform, the motion should be denied.
    Motion to cancel a notice of pendency of action by depositing a sum of money or giving an undertaking.
    Wesselman & Kraus, for motion.
    Morton Stein, opposed.
   Giegerich, J.

The prayer of the complaint is not only that the plaintiff have a lien upon the real property in suit for the amount of his deposit, etc., but that in case the defendant becomes able to convey good title he be directed to specifically perform the contract. Since something more" than the payment of a sum of money is asked the Us pendens should not be canceled by a deposit of money or by the giving of an undertaking pursuant to section 1671 of the Code of Civil Procedure. Tishman v. Acritelli, 111 App. Div. 237; Schenkein v. Horowitz, 51 Misc. Rep. 80. It is urged by the defendant, however, that specific performance by him is impossible, and that adequate relief can be secured to the plaintiff by a deposit of money or the giving of security, as was done in Bresel v. Browning, 109 App. Div. 588. But that case has no application, since it there appeared by the complaint that the only relief which the plaintiff could obtain was a judgment for a sum of money, while here the plaintiff claims that the defects upon which the rejection of title was based can be cured by the defendant. The test in applications of this character is not what may be the ultimate outcome of the case at the trial, but what is demanded in the complaint. As was said in Tishman v- Acritelli, supra,, 239: “ The right of the plaintiff to retain the notice of pendency of action must be determined upon the allegations of the complaint, or facts clearly established.” The right of the plaintiff to retain the Us pendens should not be determined in advance of the trial. Motion denied, with ten dollars costs to the plaintiff to abide the event.

Motion denied, with ten dollars costs tc plaintiff to abide event.  