
    Joseph Schenkein, Plaintiff, v. Julius H. Horowitz et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1906.)
    Lis pendens — Commencement and pendency of action and notice — Cancellation of notice — Grounds — Pleading.
    A motion to cancel a notice of pendency of action on depositing money or giving an undertaking, in an action brought by a tenant to set aside a surrender of Ms lease, on the ground that it was induced by fraud, and to be restored to the possession of the demised premises, should be denied.
    Motion to cancel a lis pendens.
    
    Joseph 0. Kadane, for motion.
    I. Leon Brandmarker, opposed.
   Giegebich, J.

The defendant Gernhardt seeks, hy this motion, to cancel the lis pendens filed in this action hy a deposit of money or the giving of an undertaking pursuant to section 1671 of the Code of Civil Procedure, as amended by chapter 60 of the Laws of 1905. That section, among other things, provides that such cancellation may be ordered, except in certain actions named, where it shall appear to the court 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 an undertaking.” In Tishman v. Acritelli, 111 App. Div. 237, recently decided by the Appellate Division of this department, the court, at page 239, said: “ If the judgment asked, and to which the plaintiff would be entitled if the facts alleged in the complaint are true, includes something more than the payment of a sum of money, then the deposit of a sum of money would not secure to the plaintiff adequate relief if he succeeds.” In the present case the plaintiff seeks to recover something more than a mere sum of money. The complaint alleges the making of a lease of the premises in suit by the defendant Horowitz to the plaintiff for a term of five years from July 15, 1903, and that such lease contains a covenant for a surrender thereof upon payment of certain sums in case of the sale or transfer of the fee of said premises. The complaint further alleges that the plaintiff was induced to execute a surrender of the lease and to vacate the premises by conspiracy and fraud of the defendants in making a pretended transfer of-the premises from the defendant Horowitz to the defendant Gernhardt, but which transfer was ficticious and fraudulent and made for the purpose of securing a surrender of the lease and the possession of the premises. The relief demanded in the complaint is that such conveyance and the surrender of the lease be declared null and void; that the plaintiff be restored to the possession of the premises; that a receiver of the rents be appointed, and that the defendants account for the rents and profits. The mere fact that the plaintiff also asks for an accounting of the rents and profits docs not change the character of the action, such relief being a mere incident to the setting aside of the instruments above mentioned. As the lease has a period "of two years yet to run, the damages for such remaining term cannot, of course, be ascertained at this time, especially in view of the allegation of the complaint that the rental value of the premises is and has been constantly increasing. The right to retain the notice of pendency of action must be determined upon the allegations of the complaint or facts clearly established (Tishman v. Acritelli, supra), and such right sufficiently appears in the present case. Motion denied, with ten dollars costs to the plaintiff to abide the event.

Motion denied, with ten dollars costs to plaintiff to abide event.  