
    (108 App. Div. 301.)
    McMANUS v. WEINSTEIN et al.
    (Supreme Court, Appellate Division, First Department.
    November 10, 1905.)
    Lis Pendens—Statutes—Nature oe Action—Adjoining Owners—Restraining Encroachment.
    ■ Code Civ. Proe. § 1670, provides that in an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of, real property, plaintiff may file a notice of the pendency of the action, jReid, that where a judgment was demanded in the nature of a mandatory Injunction, requiring defendants to remove a brick wall on their premises which encroached on plaintiff’s property, plaintiff was not entitled to file a notice that defendant’s property was affected.
    Laughlin, J., dissenting.
    Appeal from Special Term, New York County.
    Action by Charles J. McManus against Bernard Weinstein and another. From an o.rder denying a motion to cancel a notice of pendency of action, defendants appeal.
    Reversed.
    
      Argued before O’BRIEN, P. J., and McLAUGHLlN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
    Joseph P. Joachimsen, for appellants.
    Martin Conboy, for respondent.
   INGRAHAM, J.

The complaint alleges that the plaintiff is the owner of certain property described in the complaint, known as 314 West 144th street, in the city of New York; that the defendants are the owners of property adjoining that of the plaintiff on the west; that during the years 1887 and 1888 a five-story fiat was erected on the premises owned by the defendants; that the easterly wall of this building upon the defendants’ property has spread and bulged, so that the same is in many places, at the roof and for almost its entire length, from one to two feet over the premises owned and occupied by the plaintiff, thus encroaching to the extent indicated upon the plaintiff’s premises; that the said encroachment prevents the plaintiff from disposing of his property, and at the same time is dangerous to plaintiff and the members of his family; and the judgment demanded is that the defendants be required to remove that portion of the brick house and wall which is upon and over the plaintiff’s said premises. At the commencement of this action the plaintiff filed a notice of the pendency of action, which described the defendants’ property as being the premises affected by the action, whereupon the defendants moved to vacate that notice of pendency of action upon the ground that the judgment asked for did not and could not affect the defendants’ property. This motion was denied, and the defendants appealed.

The notice of pendency of action was filed under section 1670 of the Code of Civil Procedure, which provides that:

“In an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment o£, real property, the plaintiff may, when he filed his complaint, or at any time afterwards before final judgment, file in the clerk’s office of each county where the property is situated, a notice of the pendency of the action.”

If this action was not to recover a judgment affecting the title to, or possession, use, or enjoyment of, the real property described in the notice of the pendency of the action, the plaintiff was not authorized by the section of the Code to file the notice, and the court should have ordered it canceled. The judgment that the complaint demands is in the nature of a mandatory injunction requiring the defendants to remove a brick wall that encroaches upon the plaintiff’s property. The judgment, if one is obtained as prayed for in the complaint, could be enforced by proceedings for a contempt. The title of the defendants to the property described in the notice is not questioned. The plaintiff makes no claim to said property, nor does he claim to be entitled to its possession, use, or enjoyment. What he objects to is that the defendants are using plaintiff’s property, which they have no right to use, and which he asks that the defendants be restrained from doing. There is, therefore, nothing in any judgment that can be entered in this action which could in any way affect the title of the defendants to the property, or their right to its possession, use, or enjoyment. The plaintiff was not, therefore, entitled to file a notice that the action affected the defendant’s property.

These views are in accordance with the decision of this court in Moeller v. Wolkenberg, 67 App. Div. 487, 73 N. Y. Supp. 890; for it was held in that case that the interest which the plaintiff asserted in the defendant’s property was of a nature which would limit the use and prevent the enjoyment thereof in the manner in which the defendant has used or is attempting to use and enjoy it, and that the court had no power to cancel the notice. In Ackerman v. True, 44 App. Div. 106, 60 N. Y. Supp. 608, which was an action brought for an injunction and to recover damages claimed to be caused by the defendant’s encroachment upon the street adjoining the plaintiff’s property, we held that the defendant’s land was in no wise affected by the suit, and that the motion to cancel the notice of pendency of action should have been granted.

I think the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

O’BRIEN, P. J., and PATTERSON and McEAUGHEIN, JJ., concur. LAUGHEIN, J., dissents.  