
    Susanna Maude Jarvis and Rebecca Josephine Jarvis, Individually and as Executrices, etc., of Nathaniel Jarvis, Jr., Deceased, Respondents, v. The American Forcite Powder Manufacturing Company, Appellant.
    
      Cancellation of notice of lis pendens — when discretionary and when a matter of right — what judgment rendered in an action of ejectment is a final judgment — definition of final judgment.
    
    Under section 1674 of the Code of Civil Procedure, relating to the cancellation of notices of lis pendens, which provides, “ after the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or -if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application' of any person aggrieved,” direct that the notice be canceled, discretion as to the cancellation of the notice is conferred upon the court only where the plaintiff “unreasonably neglects to proceed in the action; ” in the other instances enumerated in the section the defendant is entitled, as a matter of right, to have the notice canceled.
    Where an appeal to the Appellate Division, taken by the plaintiff in an action of ejectment from a judgment dismissing his complaint upon the merits, is dismissed for a failure to prosecute it, such judgment is a final judgment within the meaning of section 1674 of th"6 Code of Civil Procedure, and the defendant is entitled, as a matter of right, to have the notice of the pendency of the action canceled.
    The fact that, under section 1525 of the Code of Civil Proceedure, the plaintiff is entitled, as a matter of right, to have the judgment vacated and a new trial óf the action granted upon compliance with certain conditions, does not affect the final character of the judgment.
    
      Semble, that a final judgment is not simply one which finally determines the rights of the parties with reference to the subject-matter of. the litigation, but includes one which finally determines their rights with reference to the. particular suit.
    Appeal by the defendant, The American Foreite Powder Manufacturing Company, 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 New York on the 12th day of November, 1903, ■denying the defendant’s motion to cancel the notice of Us pendens theretofore filed in this action. -
    
      Edmund L. Baylies, for the appellant.
    
      Louis Marshall, for the respondents.
   O’Brien, J.:

The action was in ejectment in which the plaintiffs filed a notice of Us pendens. After a trial, a verdict of a jury having been rendered in favor of the defendant, a judgment was entered dismissing the complaint upon the merits. The plaintiffs appealed to to this court,' but their appeal was dismissed for failure to prosecute it. The defendant thereafter moved for an order canceling the notice of pendency of the action, which motion was denied, and from the order entered thereon the defendant appeals.

Section 1674 of the Code of Civil Procedure provides that “ after the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of any person aggrieved,” direct that the notice be canceled.

The learned judge at Special Term placed his denial of the motion upon the ground, firsts that the judgment in the ejectment suit was not such a final judgment as entitled the defendant to have it canceled, and, further, that even though it were to be regarded as a final judgment, it was still discretionary with the court as to whether or not it would direct its cancellation. In this latter view we think the learned judge inadvertently fell into error, because a reading of the section will show that the conditions or circumstances under which the notice may be canceled are disjunctive,, and that the court is only given a discretion as to whether it will or will not direct the cancellation in cases where the ground relied upon is that the “ plaintiff filing the notice unreasonably neglects to proceed in the action.” Where the ground relied upon on the motion to cancel is the unreasonable neglect “to proceed in the action,” there the judge before whom the motion is made is called upon to exercise a legal discretion in determining whether or not he will grant the motion. In the other instances enumerated in the section (1674), if the action has been “settled, discontinued, or abated, or final judgment is rendered therein against the party fifing the notice, and the time to appeal therefrom has expired,” then the defendant is entitled as matter of right to have the notice canceled.

The question, therefore, for our determination is whether the judgment rendered in the ejectment action was a final judgment within the meaning of section 1674 of the Code. The learned judge at Special Term in discussing this question referred to the various sections of the Code of Civil Procedure relating to actions of ejectment and particularly to section 1525 which provides that “ the court, at any time within three years after such a judgment is rendered, * * * upon payment of all costs, and all damages, * * * must make an order vacating the judgment, and granting a new trial in the action,” and then said: “ I am inclined to hold that a judgment which must be set aside on motion if made within three years, is not the final judgment specified in section 1674, and that the reason why a Us pendens is allowed to be filed, namely, to give notice of an attack upon the title, continues to have force until the suit can no longer be maintained.”

Thus it appears that the view taken, that here there was not a final judgment, is based upon the fact that it is not conclusive upon the rights of the parties. To apply the latter test to a judgment, for the purpose of determining whether it is or is not the final judgment referred to in section 1674 of the Code, is giving to that section a construction which its language does not warrant and which under the authorities cannot be supported. In .Black on Judgments (§ 21) it is said : “A final judgment means not a final determination of the rights of the parties with reference to the subject-matter of the litigation, but merely of their rights with reference to the particular suit.” And in Freeman on Judgments (§ 16): “ According to the common law rule by a final judgment is to he understood, not a final determination of the rights of the parties, but merely of the particular suit.” And Doorley v. O' Gorman (31 App. Div. 216, 218; 27 Civ. Proc. Rep. 345) this court had occasion to examine into the history of the action of ejectment,. and while not a direct authority upon the precise question here involved, it is instructive with respect to the view taken as to the nature of a judgment entered after a trial. Therein it was said : “ At common law a judgment in an action of ejectment was not conclusive except as to the demise laid in that action, and as many qther actions upon a new demise could be brought between the same parties as the plaintiff desired. (Adams Eject. 192, 315.) To prevent this endless litigation it was provided by the Revised Statutes that the judgment in an action of ejectment should be conclusive and it was given precisely the same effect as any other judgment between the parties (2 R. S. 309, § 36); but at the same time for the more satisfactory settling of titles and to prevent injustice because of surprise or an unforeseen failure of proof, the provisions for a new trial in certain cases as a matter of right were inserted in the statute. (2 R. S. 309, § 37.) This provision for a new trial was not, there-' fore, a restriction upon the rights of parties, but it was an enlargement of those rights. It was created by statute and depends entirely upon the statute for its existence and can only be granted in those cases in which the statute authorizes it to be done. The statute makes the granting of a new trial in these cases dependent upon the entry of a final judgment. That judgment may be for either of the parties, but when & final judgment has been entered, whether for the plaintiff or defendant, the statute gives to the party against whom' the judgment is rendered the absolute right to a new trial upon payment of costs and certain damages. This right, accruing as it does at any time within three years after a final judgment is rendered in the action, expires when the new trial has been once granted.”

As tending to show that there is no distinction in the binding force and effect of a judgment in ejectment and a judgment in any other class of actions, we have the cases of Beebe v. Elliott (4 Barb. 457) and Gates v. Canfield (2 Civ. Proc. Rep. 255).

There is no claim that the form of judgment entered in an action of ejectment should contain,( nor is there any pretense that the judgment here involved did contain, any provisions which in that action required further litigation. So far as the parties to it were concerned, the judgment was final and was the termination of the action; and the fact that by other provisions of the Code of Civil Procedure a new trial might be had under certain conditions within three years did not continue the suit as a pending action. On the entry of the judgment, therefore, and after the plaintiffs’ appeal had been dismissed for failure to prosecute it, the action in which the notice of lis pendens was filed had been terminated; and the fact that the judgment was subject to be set aside on certain conditions being complied with did not destroy its character as a final determination in that particular suit of the rights of the parties.

Our conclusion, therefore, is that the judgment which was here rendered in the ejectment action was a final judgment within the meaning of section 1671 of the Code of Civil Procedure, and the plaintiffs’ appeal having been dismissed for failure to prosecute it, so that it became a binding judgment as to the rights of the parties in that particular action, the defendant, on motion, was entitled as matter of right to have the notice of pendency of action canceled. Accordingly the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Patterson, McLaughlin and Laughlin, JJ., concurred.

Van Brunt, P. J. (concurring);

I concur in this opinion, and also think that as matter of discretion the Us pendens ought to have been canceled.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  