
    Mary Monell, Resp’t, v. Margaret K. Douglass, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 4, 1892.)
    
    Deed—Covenant—Incumbrances.
    A deed conveyed properly subject to two mortgages. At the time it was delivered an action to foreclose one of the mortgages had been commenced and a lis pendens filed. Held, that the commencement of the foreclosure action was but an incident of the incumbrance subject to-which the title was taken, and that neither it nor the lis pendens created any new incumbrance; and that the costs paid by the vendee to discontinue such action and set aside the lis pendens could not be recovered under the covenant against incumbrances.
    Appeal from judgment of the general term of the city court of Mew York, affirming judgment in favor of plaintiff.
    On October 25,1889, the defendant and the plaintiff entered into-a contract whereby defendant agreed to sell to plaintiff the premises known as Mo. 207 Bast One Hundred and Second street, Mew York city, for $16,750, to be paid at follows : $1,000 at the making of the contract; $1,750 at the delivery of the deed; and the-balance, $14,000, by the plaintiff taking the property subject to-two mortgages ; a first mortgage of $12,000, and a second mortgage of $2,000.
    On Movember 23, 1889, the defendant delivered to plaintiff her deed dated that date, whereby she conveyed said premises, “ subject, however, to two certain mortgages thereon; one of Thomas»McGuire to Cecile Eusch for $12,000, and another for $2;000 by said McGuire to Michael Duffy,” and among other things, defendant covenanted as follows: “And that the same (that is, the premises conveyed), are now free, clear, discharged and unincumbered of and from all other former grants, titles, charges, estates, judgments, taxes, assessments ana incumbrances of what nature or kind soever, except as aforesaid.”
    After the making of said contract of sale and before the delivery of said deed, the then holder and ownér of said second mortgage of $2,000 began an action in the supreme court for Mew York county to foreclose said mortgage, and filed in the clerk’s office of that county a notice of the pendency of that action. Defendant Margaret K. Douglass was a party defendant in said foreclosure suit, and said notice of pendency of action was docketed against her, and the summons and complaint in said foreclosure-suit served upon her before the delivery of said deed.
    After the delivery of said deed the plaintiff paid $76.25 for the purpose of obtaining the discontinuance_ of said foreclosure-suit and the cancellation of said lis pendens against said property.
    After said payment and after the delivery of said deed, an order was entered by the plaintiff in said foreclosure action discontinuing said suit.
    
      G. W Wilson, for resp’t; Kenneson, Grain & Ailing (Thaddeus-. tS. Kenneson, of counsel), for app’lt
   Per Curiam.

We are unanimously of the opinion that the filing of the lis pendens created no new upon property and that the commencement of the foreclosure action was a-mere incident of the incumbrance subject to which the plaintiff took the title. We also think the payment of costs was a voluntary payment on the part of the plaintiff in this action and is not recoverable under the covenants of her deed.

There should, therefore, be a reversal of the judgment and a ¿new trial with costs to the appellant to abide the event.

Bookstaveb, Bischoff and Pbtob, JJ., concur.  