
    Patrick J. Grace, Appellant, v. Ellen Bowden, Respondent.
    
      Pontraet for the sale of land—a notice of lis pendens alone, without proof that the title was in doubt.became of the claim,, does not justify its rejection—forfeiture of the amount paid.
    
    A purchaser is not entitled to reject a title offered to him, under an executorycontract for the sale of real estate, merely because the record shows the existence of a notice of lis pendens ; he must go farther and show that doubt, as to the validity of the title, is created by the character of the claim made in the suit in which the lis pendens was filed. If he refuses, without good ground for so doing, to take the title he forfeits what he has already paid on the contract.
    Appeal by the plaintiff, Patrick J. Grace, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 1st day of April, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover for a breach of a contract for the sale of real property, the title to which was objected to by the plaintiff.
    
      Edward G. Nelson, for the appellant.
    
      Benjamin Patterson, for the respondent.
   Willard Bartlett, J.:

The plaintiff rejected the title offered him by the defendant under a contract for the purchase of real estate, and by this action sought to recover $1,000 which he had paid upon the execution of the contract, and $1,000 as liquidated damages for the breach of the agreement.

The objections to the title were not such as to justify the course of the plaintiff in refusing to accept it.

The mere existence of the notice of Us pendens on record in the case of Prentiss v. Bowden (145 N. Y. 342) was not enough to make the title doubtful. The objecting party was bound to go further and show that doubt was created by the character of the claim which was made in the suit to which the notice of Us pendens referred. (Simon v. Vanderveer, 84 Hun, 452; Hayes v. Nourse, 114 N. Y. 595.) This the plaintiff did not do in the case at bar. On the contrary, the proceedings in the suit in which the notice of Us pendens had been filed showed that the claim made therein was without validity, as has since been decided by the Court of Appeals. (Prentiss v. Bowden, supra.) The appellant contends that such claim was maintainable under chapter 740 of the Laws of 1894, but the decision of the Court of Appeals, which was not rendered until March, 1895, long after the amendatory statute took effect, seems conclusive against him on this point.

The plaintiff should take the title offered by the defendant. If he continues to refuse to do so, he must lose what he has already paid on .the contract.

The judgment and order below were right and should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  