
    Josephine S. Parker, Appellant, v. Anna G. Selye, Respondent
    
      Former action pending — what allegations are insufficient to sustain such defense—■ the purpose of the second suit must have been attainable in the first—■filing a supplementary complaint not compulsory— effect and purpose of a notice of lis pendens —necessity of indexing it.
    
    The complaint in an action alleged, in substance, that on the 16th day of February, 1893, the plaintiff commenced an action in the Supreme Court against De Villo W. Selye and the defendant Anna Selye for the purpose of having it adjudged that the plaintiff was the owner of an undivided half of lands owned formerly by Lewis Selye, deceased, and on the 18th day of May, 1894, an interlocutory judgment was entered in that action by which it was adjudged that De Villo W. Selye and the plaintiff were tenants in common, and that on the 15th day of December, 1893, a deed from De Villo W. Selye to the defendant, who is his wife, covering part of the premises in question was placed upon record in the Monroe county clerk’s office. It also alleged that the'coniplaint and notice of pendency of that action were filed in the Monroe county clerk’s office on the 16th day of February, 1893, and that the interlocutory judgment referred to, among other things, required the said De Villo W. Selye to' account for so much of the property as he had sold under a power of attorney from the plaintiff.
    The defendants in the first action were the Selye Park Building Lot Association, De Villo W. Selye and his wife, the present. defendant, but no relief was demanded against her, although it was adjudged therein that she should join with her husband in conveying to the plaintiff all that portion of the premises which had not been conveyed pursuant to contracts of sale theretofore made..
    
      The complaint in the present action further alleged that this defendant now claimed that the said lots were conveyed to her by her' husband prior to the commencement of. the first action, and that they were not, therefore, in any manner affected hy said action or hy the judgment granted in it, and demanded as relief that the real-estate described in the; deed of De Villo W. Selye to the.
    . present defendant he adjudged to he subject to the judgment- in the prior action. A demurrer was interposed to the complaint upon the ground that it appeared hy the complaint that another action was pending between, the same parties for ■ the same cause.
    
      Held, that the demurrer could not-be sustained.
    That the first action was directed against De Villo W. Selye to compel him to account for the interest of the plaintiff in the property, and that in that action no relief was sought by the complaint against the defendant here, Anna G> Selye, nor was any granted beyond the fact that she was directed to unite with her husband in' a conveyance;
    That the relief sought in the present action was to hind the defendant Anna G-. Selye, who was alleged to claim as grantee of her husband, hy the judgment. in the former action;'
    That the deed under which the. defendant now claimed was. recorded subsequent to the commencement of the first action and could not have been considered in that action, unless an amended or supplemental complaint had been filed, and that no rule of law requires the filing of such a complaint;
    That, in order to sustain the demurrer, it must-appear-that the whole purpose of the second suit was attainable in the first;
    That the filing of the complaint and Ms pendens in the former action did not affect the question, as the issues in the two actions were hot the same;
    That there was the additional objection that the clerk was not required, pursuant.' to section 1672 of the Code of. Civil Procedure, by a notice at the foot, of the Ms pendens, so far as appeared by the complaint, to -index it against the. .name of the defendant’s grantor, De Villo W. Selye, and that to make such Ms pendens ' effective it was requisite that this be shown, as a notice of the pendency of an action affected only a purchaser or incumbrancer from and against the defendant with respect to whom the notice was directed to be indexed;
    That section 1671 of the Code of Civil Procedure did not apply to defendants actually served with process., but was a. statutory substitute for actual notice tp subsequent purchasers and incumbrancers.
    ' Appeal by the plaintiff, Josephine S. Parker, from a judgment c>i the Supreme. Court in favor of the defendant,, entered in. the oS.ce of tLo, .clerk of the comity of Mon-roe. on- the 30th day of December, 1895, upon the decision of the court rendered. After a trial at the Moproé Epity Term, sustaining a- demurrer to the complaint in this action for the reason that it appeared by the complaint tk.át. another action, was. pending between the same, parties for the same, .cause, ■' - .. ..
    
      
      Quincy Van Voorhis, for the appellant.
    
      William F. Oogswell, for the respondent.
   Ward, J.:

Lewis Selye of Rochester, M. Y., deceased was the owner of about thirty-two acres of land in the city of Rochester of great value. He. died intestate, leaving as his heirs at law his granddaughter, Josephine S. Parker, the plaintiff and appellant here, and his son, De Yillo W. Selye; but the property was largely incumbered by various mortgages which the deceased had executed. The complaint in this action alleges in substance that on the 16th of February, 1893, the plaintiff commenced an action in the Supreme Court against ¡the said De Yillo W. Selye and the defendant Anna Selye for the purpose of asserting the plaintiff’s rights in the said real estate .and having it adjudged that she was the owner of an undivided half thereof; that such action was brought to trial on the 18tli day of Mayj 1894, and an interlocutory judgment was entered in said action by which it was adjudged that title to the premises inured to the benefit of Selye and the plaintiff as tenants in common; that on the 15th day of December, 1893,. a deed from De Yillo W. Selye to his wife (the defendant here) of twenty-one building lots, parts of said premises, was placed upon record in Monroe county clerk’s office. The complaint refers as a part of it to the complaint in the original action and to the judgment roll in that action, and states “ that said complaint and notice of pendency of the said action were filed in the clerk’s office of Monroe county on the 16th day of February, 1893;” that the plaintiff succeeded in such action, and an interlocutory judgment was entered therein adjudging her to be entitled to ail undivided one-half of the property, and requiring the said De Yillo W. Selye to account for the proceeds of that portion, of the property which he had sold under a power of attorney from the plaintiff, and that an accounting be had before Arthur E. Sutherland, as referee. By reference to the complaint in the original action it appears that the plaintiff in this action was the plaintiff therein, and that De Yillo W. Selye, Anna. C. Selye, his wife, and Selye Park Building Lot Association were the defendants. Ho relief was sought therein against the defendant in this action, nor any claim made against her, and indeed she is only mentioned in the title of the action as the wife of De Tillo W. Selye, but the decision of . the court and the judgment in the former action directed that she should, execute in conjunction with her husband and deliver to tlie plaintiff a deed of conveyance of all that portion of the premises which had not been conveyed pursuant to contracts of sale theretofore made. The complaint in this action further,alleged “That defendant now claims, that said lots were conveyed to her by De Tillo. W. Selye prior to the commencement of said .action (the first action), and that, therefore, they are not in any manner affected by. said action.or said judgment.” The relief demanded in this action is that the real estate described in the' deed to the defendant be subject to the judgment in the first action arid for such further relief as the court might grant.

The demurrer to be successful must establish the fact from the face of the complaint that another action is pending for. the same cause between the same parties. (Code, § 488, subd. 4.) .. The first action.is undoubtedly j>ending as to the defendant De Tillo W. Selye, as only an interlocutory judgment has been obtained therein and an accounting ordered preparatory for .final judgment which must be obtained before the action can be regarded as - terminated.

., The parties in the first action were the plaintiff in this, the defendant- herein with her husband and one other defendant. So far as the parties here are concerned, they may be regarded as the same parties, though not all of -the parties in the first action. . The "difficulty with the demurrer lies in the fact-that it does not appear, upon the face of the complaint that, the-present .action is for the same cause as the first. The first action,- as we have seen, was aimed at the husband, De Tillo W. Selye, -to. compel him to account for the interest of the plaintiff in the property, and in that action no relief was sought by the - complaint therein against the defendant here.' It is'true that the decision of the court and the judgment direct that she shall Unite with her husband in the conveyance as above stated’, but there is nothing in that judgment, which grants, or .anticipates thé relief sought in this action. -The relief here sought is to bind the defendant, who claims to be the grantee of her husband of a portion of the lands in controversy, by the judgment in the former action.. The deed under which . the defendant here claims . was recorded subsequent to the commencement of the. first action, and no mention thereof appears in the complaint in that -action, and the. rights of the defendant under said deed could not he determined in that action without an amended or supplemental complaint therein, alleging the fact of the giving of such deed and the fraudulent character of the transaction, and there is no rule of law which-requires a party to file a supplemental complaint. -It is not compulsory. (Geery v. Webster, 11 Hun, 430 ; Cordier v. Cordier, 26 How. Pr. 187.) The rule in equity is that it must appear that the whole effect of the second suit be attainable in the first (Bradley v. Bosley, 1 Barb. Ch. 125), and this rule is founded in reason. (Geery v. Webster, sufra; Matter of Hood, 27 Hun, 579, and cases cited.)

The learned counsel for the defendant upon the argument seemed to rely upon the allegation in the complaint of the filing of -the complaint and the notice of pendency in the first action as above quoted, and claims that under section 1671 of the Code of Civil Procedure, which provides that “the pendency of an action is constructive notice from the time of so filing the notice, only to a purchaser or incumbrancer of the property affected thereby, from and against a defendant with respect to whom the notice is- directed to be indexed, as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed or subsequently recorded is bound by all proceedings .taken in the action, after the fifing of the notice, to the same extent as if he was a party to the action,” that the defendant was bound by the proceedings in the first action. It will be seen by this section that the defendant is only bound to the same extent by this notice that she was bound by the proceedings in the former action, and as those proceedings did not embrace the deed in question, or the controversy arising thereunder, this notice does not aid the defendant. Besides, this notice only affects a purchaser or incumbrancer from a defendant with respect to whom the notice is directed to be indexed as prescribed in section 1672 of the Code of Civil Procedure, and by that section the clerk must index the name of each defendant specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff. The complaint contains no allegation that this was done or that the indexing was against the name of De Villo W. Selye, the defendant’s grantor. Indeed, this section of the Code (1671) has no application to a party to an action who has been duly served with process therein. A party has notice from the complaint óf the pu rpose of ■the action. This notice is merely a statutory substitute for actual notice to the subsequent purchasers and incumbrancers. (Hall v. Nelson, 14 How. Pr. 32.)

The question remains whether the relief sought in this action could have been maintained in-the first, so far as it appeal's-from the. complaint in this action, and as we have reached the conclusion that, it could not,'it follows that this action is properly'maintained, and the judgment sustaining the demurrer should be reversed, with costs of this appeal and of the Special Term,'with leave to the defendant, upon the payment of such costs, to answer the complaint within twenty days after the service of the order herein upon the defendant.

All concurred.

Interlocutory judgment, reversed,.- with costs, and demurrer overruled, with costs, with leave to- defendant to answer upon payment of the costs of the- appeal and of the demurrer.  