
    James J. Kennedy, Plaintiff, v. John Holl, Defendant.
    (Supreme Court, New York Special Term,
    January, 1907.)
    Vendor and purchaser — Title and incumbrances: Judgments as liens; Pendency of action; Failure to file adjudication of bankruptcy,
    A failure by the owner of premises to erect fire escapes and remove school sinks in accordance with municipal regulations., which had been the subject of an action brought against him by the municipality in which a lis pendens had been filed, is not a valid objection by the purchaser of said premises to taking title thereto, where the Us pendens had been canceled before the date fixed for closing the contract.
    Nor is it a valid objection that judgments were recovered and docketed within ten years against a former owner of the premises where such owner was, -within a month after the recovery of the first judgment and before the recovery of others, adjudged a bankrupt and the premises were sold by his trustee in bankruptcy to the present vendor and the trustee distributed and accounted for the proceeds.
    Nor does the failure to file in the office of the register of New York county a certified copy of the adjudication of bankruptcy as provided by the Bankruptcy law affect the validity of the title.
    Action for the specific performance of a contract for the sale of real estate.
    Morton Stein, for plaintiff.
    Wesselman & Kraus, for defendant.
   Davis, J.

This is an action for the specific performance of a contract dated November 3, 1905, for the sale of certain premises in West Forty-seventh street. The time of closing the contract was extended to January 9, 1906. On this day the plaintiff refused to take title, and the defendant refused to return the deposit money. The plaintiff’s first objection to the title was that on August 29, 1904, a Us pendens was filed against the property in an action brought by the city of New York against a former owner upon a violation filed against the premises by the tenement house department. The violation referred to was an alleged failure to erect fire escapes and to remove school sinks. On the day of closing the Us pendens had been canceled, but the plaintiff claims that the defects complained of still existed on the day of closing, and for that reason he was not bound to take title. The contract does not provide that the premises shall be conveyed free of these violations. Nor does it provide that the physical condition of the premises shall be in fact such as to conform with the Tenement House Law. Assuming that on the day of closing the fire escapes had not been erected, nor the school sinks removed, such a condition of the premises would not constitute a defect of title. Presumably -the plaintiff examined the property before signing his contract and knew its physical condition. If it was then being maintained in violation of the law he knew that fact when he agreed to purchase. Doubtless the consideration was agreed upon with reference to these surrounding circumstances. The violation being discharged and the lis pendens canceled, he was bound to take title in the absence of other objections. Plaintiff claims, however, that the violation was discharged and the lis pendens canceled through fraud and misrepresentation with intent to defraud the plaintiff by requiring him to take the property in its defective physical condition. Even if this were true it is immaterial in this action by what means the cancellation of the lis pendens was obtained. The fact remains that neither the violation nor the lis pendens existed on the day of closing, and so this objection is not sound. Plaintiff also objected to the title on the ground that there were outstanding and of record in the office of the clerk of the county of New York ten unsatisfied judgments against one Mauro Pizzutiello, a former owner of the premises. These judgments were rendered on various dates between August 19, 1904, and September 23, 1904, both inclusive. On September 6, 1904, a petition in bankruptcy was filed against Pizzutiello, and on the next day he was adjudicated a bankrupt. The schedules thereafter filed by the bankrupt contained all the judgments referred to. On November 2, 1904, a trustee was duly appointed, and under proper authority he sold the bankrupt's property at public auction. At this sale the defendant became the purchaser and received his deed on November 15, 1905. Subsequently the trustee filed his accounts, in which he mentions the sale of the premises in question and the disposition of the proceeds. The account was passed by the referee in bankruptcy and the trustee duly discharged. Pnder the Bankruptcy Act all of these judgments against Pizzutiello became void as being illegal preferences upon the filing of the petition in bankruptcy, and the adjxidication thereon, because they were not recovered prior to the four months immediately preceding the filing of the petition. The proceedings in bankruptcy effectually cleared the property of the liens of these judgments, and their .existence of record was not a good ground for the rejection of the title. Other objections to the title were raised, hut none of them was sufficiently serious to justify a refusal to accept the deed tendered. The fact that no certified copy of the decree adjudicating Pizzutiello a bankrupt was ever filed in the office of the register of blew York county, as provided for by the Bankruptcy Law, does not affect the validity of the title. The trustee had a good title, conveyed a good title and the usual search in the United States District Court would disclose his complete record title. For these reasons the defendant is entitled to judgment dismissing the complaint, with costs.

Judgment for defendant, with costs.  