
    James J. Shandley, Plaintiff, v. Israel Levine, Lena Levine and Esther Berrent, Defendants.
    (Supreme Court, New York Special Term,
    June, 1904.)
    Lis pendens — Cancellation — Validity of the cause of action not triable on the motion.
    The right to file a notice of Us pendens, in a proper action e. g., one to compel specific performance of an executory contract for the sale of real estate, is an • absolute right and the notice when once filed can be canceled only in the cases prescribed by Code Civ. Pro., § 1(574.
    The court- has no right or power, upon a motion to cancel, to consider the question whether the action can be maintained as that question is for the trial or hearing.
    Motion to cancel a lis pendens.
    
    Ralph Nathan, for motion.
    Thomas E. Rush, opposed.
   Giegerich, J.

The action is brought to compel the defendants Levine to specifically perform an agreement, made December 16, 1903, to convey the real estate in question. The complaint further alleges: “ That thereafter (that is, subsequent to December 16, 1903) the defendants Israel Levine and Lena Levine (his wife) conveyed to the defendant Esther Berrent the premises herein described, and said Esther Berrent is the owner of the record title of said premises at this time.” The theory of the motion, as appears from the argument, is that the filing of the lis pendens was absolutely unwarranted, since Israel Levine was not the owner of the property, and no claim is made against the defendant Berrent. The complaint alleges, however, that Israel Levine was the owner of the property on the date of the contract, to wit, December 16, 1903, .and. it is noticeable that in the moving affidavit the defendant Berrent contents herself with stating that title vested in her on the 28th day of January, 1904, without saying from whom she obtained the property. It is obvious that the action is of the character specified in section 1670 of the Code of Civil Procedure, and that the plaintiff, if he has any cause of action at all, was within.his rights in filing the Us pendens. The circumstances under which a'Zis pendens, when once filed, can be canceled are prescribed in section 1674. There may be some question as to whether the allegations of the complaint are sufficient to affect the title in the hands of the defendant Berrent, but there can be no question, if the statements in the opposing affidavit are true, that facts exist which, if properly pleaded and proved upon the trial, will impeach her title, it being averred in such affidavit that she is the holder of the record title only of the premises in question by conveyance from the defendants Levine, and that the defendant Israel Levine continues to be the real owner. In Mills v. Bliss, 55 N. Y. 139, it was said: The right to file a notice of Us pendens which shall be constructive notice to subsequent purchasers or incumbrances of the property affected thereby, is given in all actions affecting the title to real property. Code, § 132. This is an absolute right, not depending on the discretion of the court; and a notice once filed in a proper action, the court can- only order canceled when the action shall be settled, discontinued or abated; that is, the court cannot interfere with it, or derogate from its efficiency as a notice affecting subsequent purchasers or incumbrances, so long as the action is pending and undetermined, * * * Whether the action can be sustained is not a question to be passed upon on this appeal. The plaintiff may fail to prove the facts alleged, or the court may hold that the action is untenable upon the facts stated * * *. The questions of fact as well as of law must be disposed of upon the trial and hearing of the cause. They cannot be determined upon an interlocutory motion. That the action, upon the theory upon which it is brought and upon the complaint as framed, does affect the title to real property, asserting, as it does, a legal and equitable right to a lien thereon, cannot be questioned, and, upon the face of the complaint, the notice of lis pendens was properly filed.” In Brainerd v. White, 12 Abb. N. C. 407 (at p. 413), the court said: “In this present case, if ■the motion had been granted, it would have been in consequence of the defendant contending^ that the plaintiff had not legal right to have the real estate charged, and of the court so holding. That would have been a determination of the plaintiff’s cause of action against him. If, at the subsequent stage of the action, this was followed, the issues would practically be determined upon motion, instead of upon trial. Or, if it were not followed, the action might be sustained and the benefit of the notice gone. The matter cannot be heard upon motion. Under section 1670, the nature of the judgment which the action is brought to recover, is the description of the action in which a notice of lis pendens may be filed, and not the validity of the cause of action as described by the complaint.” The doctrine of the above cases was reaffirmed in the more recent case of Beman v. Todd, 124 N. Y. 114, in the following language: “This right (of filing a lis pendens) was an absolute one, not resting in the discretion of the court, but conferred by statute, and having been properly filed, it cannot be canceled except pursuant to section 1674 of the Code of Civil Procedure.” In the present instance there may be some question as to whether the complaint is sufficiently complete in its allegations to charge the defendant Bgrrent, and there may be some dispute as to the actual facts; but since the theory of the action is plainly such as is contemplated by section 1670, and the Us pendens has been properly filed, and none of the events prescribed in section 1674, namely, settlement, discontinuance or abatement of the action, or final judgment, or neglect to prosecute, has occurred, there are no facts which would warrant the granting of the relief sought. ' '

Motion denied, with ten dollars costs.  