
    Louis Smadbeck and Isidore B. Brooks, Appellants, v. Alfred W. Law, as Executor, etc., of Alice Mills Law, Deceased, Respondent.
    Lis pendens — motion to camel it — denied if there be any doubt as to the plaintiff’s right — action to enforce a contract vendee’s lien for money paid for real property, . the title to which proved to be-defective — right to file a notice of lis pendens therein.
    
    If there he any doubt as to the right of a plaintiff in an action to file a' Us pendens therein, the question should not be: decided on. a motion to cancel ouch lis pendens.
    
    The vendees in a contract for the .sale of real estate brought an action against the vendor alleging that the title to the property was defective and seeking to recover a payment which they had made on account of the purchase price and also the expenses incurred in the examination of the title. They alleged that they had no adequate remedy at law and they asked that they be declared to have a vendee’s lien upon the premises and that the premises he sold to satisfy such lien. It-was not alleged that the vendees had been let into the possession of the premises.
    
      Held, that a notice of lis pendens filed by the plaintiffs should not he vacated on motion, as it could not he said that the action was not brought to recover &. judgment affecting the title to or the possession, use or enjoyment of the premises, or that it was clear that the plaintiffs would not be able, upon the trial, to establish a lien as vendees.
    Appeal by the plaintiffs, Louis Smadbéck and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 9th day of May, 1905, directing the cancellation of a lis yendens theretofore filed in the action.'
    
      Edwin L. Kalish. for the appellants.
    
      Charles De Hart Brower, for the respondent.
   Laughlin, J.:

This is an action by the vendee under a contract for the sale of real estate to recover a payment made pursuant to the contract on account of the purchase price of the premises, and the expenses incurred in the examination of the title. The complaint proceeds upon the theory that the title was. defective, and does not pray for specific performance. The plaintiffs allege that they have no adequate remedy at law, and pray judgment that they be decreed to have a vendee’s lien upon the premises, and for a sale thereof to satisfy the lien. There is no allegation that the vendees were let into possession of the premises. The order canceling notice of pendency was granted upon the authority of Klim v. Sachs (102 App. Div. 44), wherein it was held that the vendee, not having taken possession, did not acquire a lien upon the premises for the amount of the down payment. If there be any doubt as to the right to file the notice the merits should not be decided on a motion to cancel it. It cannot be said that the action is not brought to recover a judgment affecting the title to or the possession, use or enjoyment of the premises against which the notice of pendency is filed (Code Civ. Proc. § 1670); nor is it clear that the plaintiffs may not be able upon the trial to establish a lien as vendees. (See 3 Pom. Eq. Juris. § 1263 ; also Chase v. Peck, 21 N. Y. 585.)

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  