
    St. Regis Paper Company, Respondent, v. The Santa Clara Lumber Company, Appellant, Impleaded with The Brooklyn Cooperage Company, Defendant.
    Lis pendens — the right to file it depends on t%e purpose of the action as stated, in the complaint.
    
    A motion to cancel a lis pendens on the ground that the action is not "brought to recover- a.judgment affecting the title to or the possession, use or enjoyment of real property,” as is contemplated by section 1670 of the Code of Civil* . Procedure, will be granted only when it appears from the complaint that such is not the purpose of the action.
    The motion will not be granted where it appears that the action is based upon a contract by which the. defendant agreed to sell to the plaintiff yearly for a period of ten, or at the option of the plaintiff twenty years, a quantity of lumber, and that the plaintiff wishes to impress a lien upon the land in. question, And also to obtain specific performance of the contract, which provides that no sale shall be made by the defendant of the lands described in the lis pendens or the pulp wood thereon which shall “in any way jeopardize or prevent its complete fulfillment and performance of this contract,” notwithstanding that the Appellate Division, upon an appeal from an order granting a temporary injunction restraining the defendant from disposing of the lands, stated that the contract was one relating solely to chattels and in no sense related to realty.
    Appeal by the defendant, The Santa Clara Lumber Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Franklin on the 15th day of April, 1901, denying the defendant’s motion for the cancellation and vacation of a notice of pendency of the action filed in the Franklin county clerk’s office on the loth day of May, 1900.
    The action was brought to compel the specific performance of a contract by which the defendant agreed to sell and deliver to the plaintiff yearly, eleven to thirteen thousand cords of pulp wood for a period of ten years, or at the option of the plaintiff twénty years. The contract contained the following provisions: “ It is further provided that said party of the first part will not, during the term of this contract, sell any of its said lands or the pulp wood thereon, so as to in any way jeopardize or prevent its complete fulfillment arid performance of this contract.”
    An in j unction pendente lite was granted, following the terms of this provision of the contract but it was subsequently set aside by the Appellate Division, the opinion being reported in 55 Appellate Division, page 225.
    
      Henry W. Jessup, for the appellant.
    
      Eton R. Brown, for the respondent.
   Kellogg, J.:

The plaintiff, at the time of bringing the action, filed a lis pen-dens wherein is described the defendant’s lands, being some 32,000 acres in the Adirondack region, and wherein a claim is made affecting the title thereto. The motion is made to cancel the notice of pendency of action on the grounds that the action is not one brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property,?’ as is contemplated by section 1670 of the Code of Civil Procedure.

It is settled law in the courts of this State that where it appears by the complaint that the recovery of the judgment sought by plaintiff will affect “ the title to, or the possession, use or enjoyment of real property,” the filing of a lis pendens is permissible, and in such case the court has no power to direct cancellation of the record of such notice except as provided in section 1674. (Mills v. Bliss, 55 N. Y. 139; Bernan v. Todd, 124 id. 114.) It also seems to be well settled and determined that if the facts set forth in the complaint do not point to a recovery of a judgment which will affect the title to, or the possession, use or en joyment of real property,” a Us pendens is unauthorized and may on motion be canceled of record. (Fitzsimons v. Drought, 15 App. Div. 413; Brox v. Riker, 56 id. 388.) It is obvious) from the wording of the Code provision (§ 1670), that the purpose for which the action is brought is controlling as to the. right of plaintiff to file a notice of pendency of the action. If the complaint discloses the clear purpose to be the recovery of a judgment affecting real property, its use, possession or enjoyment, the right to file a Us pendens is assured by section 1670, The filing of a Us pendens is only an incident to the action. The contest over all the matters set forth in the complaint, as also over the sufficiency of the complaint or of the facts therein stated, or of the right to maintain the action, must be all fought out' in the action itself and in the mode prescribed by our practice. The result reached in such contest in the action determines the propriety and limitations of the notice filed. Ho separate and independent contest can be carried on with this incident to the action, or accessory, so long as the contest is continuing with the principal. It is only where it is apparent from the complaint that the action, is not “ brought to recover a judgment affecting the title to, or the possession, use or enjoyment of real property; ” that is, that such is not the purpose of the action, that a court on motion may direct the cancellation of the record of the notice on grounds other than those prescribed in section 1674. Such was the case of Brox v. Riker (supra). That was a judgment creditor’s action with facts alleged which disclosed the object to be to trace money of the debtor into certain real property and to procure a judgment declaring a lien thereon. The prayer of the complaint, however, asked for a judgment, also declaring a lien upon other real' property, brit set forth no facts which disclosed that the purpose of the action was to impress such other real property with a lien. The court held that the only purpose disclosed there Was the unwarranted exercise of a new and very dangerous process in the nature of an attachment, which, if permitted in that case, might be operated in any commercial case, such as an action at law on a promissory note, and as to such other real property the notice of lien was directed to be canceled of record. That case cannot be used as authority for the proposition, however, that the court can look into the complaint for any other purpose than to discover the object of the action. That the object or end sought cannot be wholly determined by the prayer in a complaint, the case is authority for, and on principle we think it sound.

It is true that this court, having in review the complaint in this case and the written contract upon which the action solely stands (St. Regis Paper Company v. Santa Clara Lumber Company, 55 App. Div. 225) held that This is not a contract for the sale of any standing "timber or trees, nor of any land or interest in any laud;” and further held that “ beyond question, * * * this contract is one relating solely to chattels and in no sense is it a contract relating to realty,” and" very strongly intimated that the action could not be maintained. And while it is true that the trial court has dismissed the plaintiff’s complaint on like grounds, still the- plaintiff is not satisfied and has appealed. The case has not been finally determined, and the question -is still in the court, whether the plaintiff is entitled to a recovery which affects the title, possession, use or enjoyment of the 32,000 acres of land in the complaint mentioned. There can be no doubt that the action was brought to impress upon this land a lien — a claim of the plaintiff which affects the title, possession, use or enjoyment in some measure of the land in question—and that such is the main, if not the only, purpose of the action, is also apparent from the complaint.

In addition to decreeing a lien upon the land in question to secure performance of the terms of the contract, the plaintiff seeks a decree for the specific performance by the" court of some agency under its control. Such performance, it is clear, cannot be had except these lands are possessed by such agency, and such right of possession -for that purpose is sought to be established by this action.

The effect of filing a lis pendens is to make subsequent grantees and incumbrancers parties to the action (§ 1671), so far as the rights by them "acquired in the property are concerned, and, in this sense, it has all the force of an attachment upon property with none of the liabilities attending that remedial assistant. But this consideration is a matter for the Legislature exclusively. The Legislature has the undoubted power to arbitrarily impound the subject-matter of the litigation until the litigation ends, as it does by the provisions of section 1670. It has made no distinction between actions apparently founded in right and actions wanton and malicious, nor has it given the courts discretion in the matter. The right is given to every plaintiff, showing by a complaint a purpose to recover a judgment which will affect the title, possession, use or occupation of 'real property, and that test alone must determine the right to cancel the record of a lis pendens upon motion made upon other grounds than those stated in section 1674 of the Code of Civil Procedure.

This leads to the conclusion that the order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  