
    John J. Murphy, Appellant, v. William S. Hurley and Others, Respondents.
    (Appeal No. 1.)
    Second Department,
    February 21, 1913.
    Real property — vendor and purchaser — action to recover moneys paid under contract to purchase — lis pendens.
    Where a vendee assigns a claim for moneys paid under a contract to purchase certain real property, but does not assign his interest in the contract for the purchase of such property, an action by the assignee to recover upon such claim does not in any manner affect the title to the real property in question, within the meaning of section 1670 of the Code of Civil Procedure, and hence a notice of Us pendens filed in the action is properly canceled.
    Appeal by the plaintiff, John J. Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Kings on the 22d day of November, 1912, granting an application of the defendant Hurley to cancel of record the notice of pendency of this action.
    
      Morris Jacobs, for the appellant.
    
      Vincent L. Leibell [William Feinberg with him on the brief], for the respondent Hurley.
    
      Robert W. Seaton [Harold N. Whitehouse with him on the brief], for the respondents, executors of Patrick H. McCarren, deceased.
   Woodward, J.:

On the 31st day of May, 1911, the defendant Hurley, as the owner of an undivided one-third interest in certain premises on Surf avenue, Ooney Island, in conjunction with the executors of the estate of P. H. McOarren, owners of an undivided one-third, of the same premises, entered into an agreement in writing with one F. J. de Griers, by the terms of which agreement the said de Griers was to purchase the entire property at the sum of $52,500, the parties to the agreement promising to sell their interest and to use their best efforts to procure the consent of. the Borough Bank (the owner of the remaining undivided one-third interest) to sell at the same price. Under the terms of this agreement de Griers paid to Hurley and the executors'of the McOarren estate the sum of $2,000. On the 25th day of June, 1912, de Griers assigned, not his interest in this contract for the purchase of the property, but “ all that certain claim in and to the sum of Two thousand dollars ($2,000), and interest, if any, paid to Samuel S. Whitehouse and William S. Hurley, upon a paper purporting to be a contract or offer or memorandum of the conditions regarding the contemplated purchase of premises located on Surf Avenue, * * * and the said claim hereby granted, sold, assigned and conveyed is a claim against William S. Hurley, Henry F. Haggerty and Samuel S. Whitehouse, as alleged executors of the estate of Patrick H. McOarren and as individuals.” This assignment was made to the plaintiff, who subsequently brought this action, claiming not only the right to recover the amount of money mentioned in the assignment, but to a lien upon the premises involved in the original transaction. A notice of lis pendens was filed, and the defendant Hurley moved the court to cancel this notice, on the ground that this is not an action brought to recover a judgment affecting the title to or possession, use or enjoyment of real property under the provisions of section 1670 of the Code of Civil Procedure, and that, therefore, the lis pendens is illegally filed. This motion the court has granted, and the plaintiff appeals from the order granting such motion.

The theory upon which courts of equity permit a recovery of earnest money in contracts for the sale of real estate, where there is a failure on the part of the vendor to perform, and to make such recovery a lien upon the property, is that the purchaser by his payment has acquired an equitable ownership in the property to the extent of his payment. (Elterman v. Hyman, 192 N.Y. 113, 118, 122, 123, and authorities there cited.) But in the case now before us the vendee has treated the case as one where he has a claim against the defendants in their personal and representative capacities, and he has assigned merely his claim for a certain amount of money, apparently upon the theory that he is thereby rescinding the contract, for in the assignment this contract is referred to as a “paper purporting to be a contract * " regarding the contemplated purchase of premises.” The vendee does not pretend to assign his interest in a contract then existing, but a claim for moneys alleged to be due him, and the plaintiff, standing on no better foundation than this assignment, has no cause of action which in any manner affects the title to the real property involved in the litigation. We quite agree with the view of Mr. Justice Stapleton at Special Term, that it is obvious that even were the contract for the sale of lands itself assigned by the vendee, his assignee, on breach by the vendor, is not entitled to a judgment impressing a lien upon the land for the earnest money paid by the original vendee unless there is a specific agreement of novation to which the three parties agree that the assignee is to take the place of his assignor. (Hugel v. Habel, 132 App. Div. 327.) The complaint here is not only without such an allegation, but it merely alleges an assignment of a claim for money, and this is not the foundation for such an action as is contemplated by section 1670 of the Code of Civil Procedure.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  