
    William F. Lennon, App’lt, v. Mary A. Stiles, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    Lis pendens—Cancellation.
    Where the application shows a judgment of dismissal of the action voluntarily entered by the plaintiff as matter of choice, an affirmance of the judgment by the appellate court, and prejudice to the defendant arising from the continuance of the notice of lis pendens uncancelled, an order of cancellation is properly made under § 1674 of the Code.
    Appeal from order cancelling notice of pendency of action.
    
      James Kearney, for app’lt; B. B. Allen, for resp’t
   Brady, J.

This action was brought to enforce specific performance of an alleged contract for the exchange of real estate. It was tried before Justice Ingraham, and decided in favor of the defendant By the decision, the learned justice, see report of opinion, 24 H. Y. State Rep., at p. 391, determined to refuse a judgment of specific performance, leaving the plaintiff to his remedy at law, and giving him the opportunity, if he desired to avail himself of it, of entering a judgment dismissing the complaint without costs. The plaintiff availed himself of that privilege, and then appealed from the judgment. The point arising upon that circumstance does not appear to have been presented. See report of general term opinion, 24 H. Y. State Rep., at p. 393.

But it seems quite clear that the plaintiff having availed himself of a favor granted by the court, viz.: the discontinuance of the action without payment of costs, could not maintain an appeal. If there be any doubt, however, about that, the fact that the judgment was affirmed taken in connection with the provisions of § 1674 of the Code was quite sufficient not only to justify, but to require in the proper administration of justice the cancellation of the notice. The section just mentioned expressly provides that after an action is settled, discontinued or abated, etc., the court may, in its discretion, upon the application of any person aggrieved, upon notice, direct that such notice be cancelled of record. See also Wagner v. Perry, 51 Hun, 199 ; 21 N. Y. State Rep., 386.

The application upon the part of the defendant established the fact that the continuance of the notice was prejudicial to his interests and an obstacle in the successful use of his property, and that justly called into exercise the discretion conferred by the-section stated. The application presented to the court had these features, viz.: a judgment of dismissal voluntarily entered by the plaintiff as matter of choice, an affirmance of the judgment rendered against him by the appellate court, and prejudice to the defendant arising from the continuance of the notice uncancelled.

Under these circumstances the order appealed from was decidedly proper and it should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.  