
    Abraham N. Bresel, Respondent, v. Edward W. Browning, Appellant.
    First- Department,
    December, 1905.
    Lis pendens — when same should he canceled on giving undertaking in lieu thereof — amendment to the Code of .Civil Procedure allowing such undertaking is retroactive.
    When, in an action for specific performance of a contract for the sale of lands, the plaintiff alleges that he rejected the deed tendered by defendant, because the actual dimensions of the lands differed from those set forth in the terms of sale and' because the lands were found to be subject to .a covenant to paire,, he shows that specific performance by the defendant is impossible^ and that, his only remedy is for damages. In such case the court should order the cancellation of a Ms pendens filed in the action, upon the defendant giving an undertaking or depositing moneys .to insure the payment of damages, as provided by section 1671 of the Code of .Civil Procedure.
    Although the amendment to said section of the Code of Civil Procedure, peiv mitting such undertaking or deposit of money in lieu of the Us pendens, went; into effect after the filing' of the same, such amendment is retroactive, as. it affect's merely matters of procedure and practice.
    The right to a- Ms pendens is not a property right.
    Appeal by the defendant, Edward W. Browning, from an order of the Supreme Court, made at the Mew York Special Term an" entered in the office of the.'clerk of the county of New York o the 9th d^y of November, 1905, denying the defendant’s motion t cancel a lis pendens.
    
      
      Clarence E. Thornall, for the appellant.
    
      Joseph Wilkenfeld, for the respondent.
   Houghton, J.:

The defendant, being one of several common owners of the real property in question, advertised to sell it at public auction. The terms of sale prescribed that the property would be conveyed to the purchaser by the defendant and one Florence B. Biggs, by good deed, free from all incumbrances. Plaintiff was the successful bidder, and, upon signing the terms of sale, made a cash payment. A deed was tendered, which the plaintiff rejected on the ground that the actual dimensions of the premises were not as set forth in the terms of sale, and that the land was" subject to a covenant to pave and repair the street in front of it.

Shortly thereafter, and in April, 1905, plaintiff brought this action setting forth these alleged defects in title, but asking that the defendant specifically perform, or in the event of his inability to do so, that his deposit be repaid, together with damages. The usual Us pendens was filed, and tliis appeal is from an order denying a motion for its discharge.

If the plaintiff’s allegations are "true, it is quite manifest that he can never obtain a decree for specific performance. The defendant cannot increase the dimensions of the land, and if there be a covenant running with it to pave and keep in repair the street in front, the defendant is quite powerless to rid the land of it. The most, therefore, that the plaintiff can expect is to recover his damages, if any, together with the deposit which he has made.

The recent amendment made by chapter 60 of the Laws of 1905 to section 167.1 of the Code of Civil Procedure permitting the court to direct the cancellation of the notice of pendency of action and the substitution therefor of an undertaking or a deposit in court of a sum of money is designed to meet a case like the present, where the complaint or facts established show that specific performance cannot be decreed but only money damages recovered. That section as thus amended provides that “in any action other than an action to foreclose a mortgage or for the partition of real property, or for dower, in which a notice of the pendency thereof has been filed, and in which it shall appear to the court, upon a motion made as hereinafter provided, that adequate relief can be secured to the plaintiff by a deposit of money, or in the discretion' of the court by the giving of ah undertaking, as hereinafter provided, where the cancellation of such notice is not otherwise expressly provided, for or regulated, any defendant or any other person having an interest in -the property affected by the action may apply for the cancellation- of such, notice;”

But the plaintiff urges that his' notice of pendency of' action was filed prior to September 1, 1905, when this amendment to the section went into effect, and hence it can have no application to him. We do" not concur in this view. The provisions of the section are mere matters of procedure and practice, and are to be applied as of the time when the motion is made whether the notice of pendency was filed before or after the law went into effect. There is no property right in a Us pendens. The Legislature . may provide a substitute or take away the right, to file one .'altogether without infringing upon the property rights of a litigant. The'pow.er of the Legislature to change rules of evidence as they existed at common law, and to limit, change and vary existing rules for the limitation of actions or procedure therein is not affected or restricted by the .Constitutional prohibition against the taking of life, liberty or property without due process of law. (People v. Turner, 117 N.Y. 227.) •

The facts presented on the motion were such that the court should have permitted the cancellation of the Us pendens herein upon' the defendant giving such undertaking or making such deposit of money as would insure to the'plaintiff the payment of his damages and. ■ repayment of the deposit which he had made.

The order should be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term for further ■ action in accordance therewith.

- O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred. ' ' >

Order reversed, with ten dollars, costs and disbursements,. and matter remitted to Special Term.  