
    ERASTUS BRAINERD, Respondent, v. MARTHA WHITE, et al., Appellants.
    
      Lis pendens—when not canceled on motion—action on married woman's note.
    
    In an action on the promissory note of a married woman, charging, her separate estate, etc., in which judgment is asked that the real estate of the defendant be charged with the payment of the note, a Us pendens may be filed, and while the action is pending and undetermined, the court cannot cancel it on motion on the ground that under section 1670 of the Code of Civil Procedure plaintiff was not entitled to file such notice.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ,
    
      Decided December 4, 1882.
    
      Appeal by defendant White from an order denying her motion to cancel a notice of lis pendens, that had been filed in the county clerk’s office by the plaintiff.
    The complaint alleged that the defendant White made her promissory note, etc., to the defendant Manifold, who indorsed it, etc., to the plaintiff; that the note was given by defendant White to defendant Manifold in payment of “ an indebtedness for brown stone furnished to and work and labor performed upon the separate estate of defendant White,” who was a married woman, “at her special instance and request, and for the benefit of said separate estate, and that in and upon said note the said defendant White, in writing expressing the consideration, charged her separate estate with the payment thereof ”; and that defendant White was the owner of certain particularly described parcels of real estate in the city of Hew York. The complaint demanded judgment for the amount of the promissory note and interest, “and that the said real estate of the said defendant White is charged with the payment thereof, and that the same is a lien thereon.”
    The counsel for defendant White argued that the present was not an action in which, under section 1670, Code of Civil Procedure, a notice of lis pendens is allowed to be filed, and that the court had inherent power to cancel a notice thus filed.
    
      Cephas Brainerd, for appellant.
    The allegations in the complaint are only a presentation of facts necessary to give validity to the note, if it had not contained the statutory words charging defendant’s separate property. In such an action as this it is not competent for the plaintiff to file a lis pendens, and tie up every lot of land a defendant may own (Leitch v. Wells, 48 N. Y. 586). The Code contemplates a specific action with reference to a specific piece of property, and such has been the doctrine of lis pendens in all its aspects for a hundred years, not only under formal notice, but under notice presumed from the fact that an action had been commenced (Fitzgerald v. Blake, 28 How. 110; Mills v. Bliss, 55 N. Y. 139).
    
      Henry Arden, for respondent.
    The action not being “ settled, discontinued or abated, or final judgment rendered,” the court has no power to order the Us pendens canceled (Code Civ. Pro. § 1674).
    A notice of Us pendens may properly be filed in action to have a debt declared a lien upon the separate real estate of a married woman. Such an action is “ an action affecting the title to real property” (Sanders v. Warner, 2 N. Y. Week. Dig. 507; Wilmot v. Meserole, 41 Super. Ct. 276).
   By the Court.—Sedgwick, Ch. J.

I am of opinion that the court properly denied the motion to cancel the notice of lis pendens. It is not necessary to assert that in no case would the court have power to cancel a notice of lis pendens before a settlement, discontinuance or abatement of the action. It is enough if it have not the power in a case of this kind.

The complaint claims that, by reason of the facts therein stated, the plaintiff is entitled to a judgment that the real estate of the defendant White be charged with the payment of the promissory note alleged to have been made by her. It is not material to determine now whether he has or has not, by reason of the facts, a right to such a judgment. Unless the defendant should interpose in some competent way, if she made entire default, the plaintiff could enter such a judgment. Then, between them, it would be res adjudicata. The plaintiff has the right to make the claim, and at least have it litigated. Such a judgment would affect “the title to real property” (§ 1670, Code Civ. Pro.). It would be an incumbrance upon it.

Before the statute requiring a notice of Us pendens to be filed, in order to give notice to strangers of the existence of the right claimed in the action, constructive notice was given by the filing of the bill of complaint and beginning the suit. In this former practice the complainant had the benefit of notice, whether he after-wards succeeded or failed, and purchasers took at their peril. And it may be said that the statute, so far as real estate was concerned, only substituted for notice, by mere filing and service of subpoena, the specific notice now required to be filed, leaving strangers, in the latter as in the former case, to act at their own risk.

In this present case, jf the motion had been granted, it would have been in consequence of the defendant contending that the plaintiff had not legal right to have the real estate charged, and of the court so holding. That would have been a determination of the plaintiff’s cause of action against him. If, at the subsequent stage of the action, this was followed, the issues would practically be determined upon motion, instead of upon trial. Or, if it were not followed, the action might be sustained and the benefit of the notice gone. The matter cannot be heard upon motion.

Under section 1670, the nature of the judgment which the action is brought to recover is the description of the action in which a notice of Us pendens may be filed, and not the validity of the cause of action as described by the complaint.

The section mitigates somewhat the supposed consequences of unfounded claims of this kind. The notice may be canceled if there be unreasonable neglect to proceed in the action.

It may be proper to add that cases where the complaint does not, on its face, make a claim for a judgment that would affect real estate, have not been referred to.

Order affirmed, with $10 costs.

Freedman and Russell, JJ., concurred.  