
    Matter of the City of New York v. The Alleged Unsafe Building, No. 429—431 West Fifty-third Street, Henry Holding, Owner.
    (Supreme Court, New York Special Term,
    December, 1907.)
    Lis pendens — Commencement and pendency of action and notice — Cancellation of notice — Upon deposit or undertaking.
    The provisions of section 1671 of the Code of Civil Procedure, providing for the cancellation of a notice of pendency of action upon making a deposit or giving an undertaking, do not apply to a proceeding brought under the provisions of the Building Code of the city of New York.
    Where it appears in an action brought by the city of New York that the plaintiff is entitled to other relief than a judgment for a sum of money and for a sale of the property mentioned in the complaint, adequate relief would not be secured by a deposit of money or an undertaking; and for that reason the notice of pendency should not be canceled.
    Motion to cancel a lis pendens. .
    Harold C. Knoeppel, for motion.
    Francis K. Pendleton, corporation counsel (John P. O'Brien and Samuel J. Parmenter, of counsel), opposed.
   Giegerich, J.

A motion to cancel the Us pendens filed herein was heretofore denied by Mr. Justice Fitzgerald. It is claimed by the owner, however, that in such prior application cancellation was demanded as a matter of right, while in the present one it is sought by making a deposit of money or the giving of an undertaking, as provided by section 1671 of the Code of Civil Procedure. Assuming, without, deciding, the point in favor of the owner, it clearly appears from a reading of said section that it does not apply to a proceeding such as this one, which is brought under the provisions of the Building Code, but relates solely to an action of the character specified in section 1670 of the'Code of Civil Procedure. Upon reading sections 153, 154 and 155 of the Building Code it will be seen that the proceeding thereunder is distinctly in rem, and that' they afford no authority for the entry of a personal judgment, section 155 providing that judgment shall be rendered for the sale of the premises for the cost and expenses attending the execution of a precept to repair, secure or take down an unsafe or dangerous building, which judgment “ shall be in the same manner and with like effect as sales under judgment in foreclosure of mortgages.” An action to foreclose a mortgage is expressly excepted from the provisions of section 1671 of the Code of Civil Procedure, and if there is any analogy between a proceeding taken pursuant to the portions of .the Building Code above referred to and an action in foreclosure, then the argument that the provisions of section 1671 do not apply to the Us pendens that has been filed in this proceeding has great force. Apart from all this, as it appears that the city is entitled to other relief than a judgment for a sum of money and to a judgment for a sale of the property, adequate relief would not be secured by a deposit of money or an undertaking, and, therefore, the Us pendens should not be cancelled. Tishman v. Acritelli, 111 App, Div. 237; Kennedy v. Hall, 51 Misc. Rep. 78; affd., 114 App. Div. 913.

Motion denied, with ten dollars costs.  