
    Bachmann v. Wagner.
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    Lis Pendens—When Allowed.
    In an action to recover purchase money paid under a contract of sale of land, which the vendee now refuses to accept because of defect in the vendor’s title, a Us pendens may be filed when the vendee prays that such money may be declared a lien on the land; for the judgment sought will affect “the title to, or the possession, use, or enjoyment of, real property, ” within Code Civil Proc. § 1670.
    Appeal from special term, New York county.
    Action by Emil Bachmann against Philip Wagner to recover money paid as part of the purchase price of land under a contract of sale with defendant, which land plaintiff afterwards refused to take on account of defects in defendant’s title, and to have a lien declared on the premises in his favor for the amount so paid. Plaintiff filed a Us pendens, which defendant moved to have dismissed on the ground that this was not a proper action for it. This motion was denied, and defendant appeals.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Philip O’Sullivan, (John A. Straley, of counsel,) for appellant. Frank Schaeffler, for respondent.
   Per Curiam.

“In an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of, real property, the plaintiff may, when he files his complaint or at any time afterwards before final judgment, file in the clerk’s office of the county where the property is situated a notice of the pendency of the action;” and where such notice of Us pendens is filed in such an action the court has no power to entertain a motion to cancel same. Mills v. Bliss, 55 N. Y. 139. The only question, then, to be considered is whether the judgment sought to be recovered in this action would affect the title to, or the possession, use, or enjoyment of, real property. The action is brought manifestly to impress a lien upon real estate, and to have that lien foreclosed, and the real estate sold to satisfy the same. Such an action clearly affects the title to, or the possession, use, or enjoyment of, real estate. Under the guise of a demurrer to a complaint in such an action, a motion cannot be entertained to cancel a Us pendens. The right of the plaintiff to recover must be determined in a different manner. The order should be affirmed, with ©10 costs and disbursements. 
      
       Code Civil Proc. N. Y. § 1670.
     