
    Charles J. McManus, Respondent, v. Bernard Weinstein and Elias Kirschberg, Appellants.
    Lis pendens—notice thereof cannot he filed in an action to compel the owner of an adjoining lot to remove the overhang of his wall.
    
    An action brought by the owner of a city lot against the owner of the adjoining lot, to compel the latter to remove such portion of the wall of a building erected on the adjoining lot as overhung the plaintiff's lot, is not an action to recover a judgment affecting the title to, or the possession, use or enjoyment of the adjoining lot, and the plaintiff is consequently not entitled, under section 1670 of the Code of Civil Procedure, to file a notice of lis pendens describing the adjoining lot.
    Latjghlin, J., dissented.
    Appeal by the defendants, Bernard Weinstein and another, 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 20th day of July, 1905, denying the defendants’ motion to cancel a notice of pendency of action filed in said clerk’s office on the 3d day of June, 1905.
    
      Joseph P. Joachimsen, for the appellants.
    
      Martin Conboy, for the respondent.
   Ingraham, J.:

The complaint alleges that the plaintiff is the owner of certain property described in the complaint known as 314 West One Hundred and Forty-fourth street, in the city of New York; that the defendants are the owners of property adjoining that of the plaintiff on the west; that during the years 1887 and 1888 a’ five-story flat was erected on the premises owned by the defendants; that the easterly wall of this building upon the defendants’ property has spread and bulged so that the same is in many places and for almost its entire length, from one to two feet at the roof over the premises owned and occupied by the plaintiff, thus encroaching to the extent indicated upon the plaintiff’s premises; that the said encroachment prevents the plaintiff from disposing of his property, and at the same time is dangerous to plaintiff and the members of his family, and the judgment demanded is that the defendants be required to remove that portion of the brick house and wall which is upon and over the plaintiff’s said premises. 1

At the commencement of this action the plaintiff filed a notice of the pendency of action, which described the defendants’ property as being the premises affected by the action, whereupon.the defendants moved to vacate that notice of pendency of action upon the ground that the judgment asked for did not and could not affect the defendants’ property. This motion was denied and the defendants appealed. The notice of pendency of action was filed under section 1670 of the Code of Civil Procedure, which provides that “in an action brought to recover a judgment affecting the title to, or the possession, usé or enjoyment of, real property, if the complaint is verified, the plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file in the clerk’s office of each county where the property is situated, a notice of the pendency of the. action.’Y If this action was not to recover a judgment affecting ■ the title to, or the possession, use or enjoyment of the real property described in the notice of the pendency of the action, the plaintiff was not authorized by the section of the Code to file the notice, and the court should have ordered it canceled. The judgment that the complaint demands is in the nature of a mandatory injunction requiring the defendants to remove a brick wall that encroaches upon the plaintiff’s property. The judgment, if one is obtained as prayed for in the complaint, could be enforced by proceedings for a contempt. The title of the defendants to the property described in the notice is not questioned. The plaintiff makes no claim to said property, nor does lie claim to be entitled to its possession, use or enjoyment. What he objects to is that the defendants are using plaintiff’s property which they have no right, t'o use, and which he asks that the defendants be restrained from doing. There is, therefore, nothing in any judgment that can be entered in this action which could in any way affect the title of the defendants to their property, or their right to its possession, use or enjoyment. The plaintiff was not, therefore, entitled to file a notice that the action affected the defendant’s property. These views are in accordance with the decision of this court in Moeller v. Wolkenberg (67 App, Div. 487), for it was held in that case that the interest which the .plaintiff asserted in the defendant’s property was of a nature which would limit the usó and prevent the enjoyment thereof in the manner in which-the defendant has used or is attempting to use and enjoy it, and that the court had no power to cancel the notice. In Ackerman v. True (44 App. Div. 106), which was an action brought for an injunction and to recover damages claimed to be caused by the defendant’s encroachment upon the street adjoining th'e plaintiff’s property, we held that the defendant’s land was in nowise affected by the suit and that the motion to cancel the notice of pendency of action should have been granted.

I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien, P. J., Patterson and McLaughlin,- JJ., concurred; Laughlin, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten ddllars costs.  