
    Besse C. Clark, Plaintiff, v. A. N. McInnis Realty Company et al., Defendants.
    (Supreme Court, New York Special Term,
    December, 1909.)
    Lis pendens — Actions and property to which lis pendens applies — Actions involving real property — Question of ownership of mortgage does not affect title.
    Parties — Defendants — Who must be joined — Parties necessary to adjudication.
    A purchaser at a foreclosure sale is not a proper party to an action to determine the ownership of a mortgage upon the same property which was not cut off by the foreclosure. Such an action does not involve the title to the mortgaged premises and the purchaser is entitled to have a Us pendens filed therein canceled.
    Motion to cancel a lis pendens. The opinion states the ease.
    Albert F. Sharpe, for plaintiff.
    Weschler & Rothschild, for defendant Louis B. Rosenberg.
   McCall, J.

I do not see from these pleadings how the defendant Rosenberg is involved at all in this litigation, except in being arbitrarily made a defendant. He was a purchaser for value at a foreclosure sale under mortgages that are in nowise attacked as to validity, nor is an attempt made to impeach the proceedings. Whatever issue is raised as between plaintiff and the realty company may be litigated, but it must proceed, it seems to me, with the fact established that the realty company has been regularly and legally divested of the fee to the realty and that Eosenberg is the owner thereof, subject to the lien of the mortgages not cut off by the foreclosure under which he bought. Whoever the owner of the $8,000 mortgage may prove to he is a matter Eosenberg is only concerned in to the extent that he recognizes that his property is burdened with that lien; hut this does not justify his being made a party to the suit and certainly will not permit of his title being clouded with the filing of a lis pendens in a suit to determine that issue, because it cannot he said hut that the rights of the litigants may he determined and the title remain the same, the action in nowise being to determine a title to the fee or an interest in realty within the meaning of the Code. The motion is granted, with ten dollars costs.

Motion granted.  