
    MOSS v. N. Y. ELEVATED RAILROAD CO.
    
      N. Y. Superior Court, Special Term;
    
    
      October, 1891.
    1. Notice of pendency of action.] In a suit to enjoin the running of an elevated railway in front of plaintiffs’ premises and for damages, the judgment granted a perpetual injunction with a provision for defendants tendering a specified sum for the conveyance of the easement within a given time, and the execution by plaintiff upon such tender of a proper release thereof. On motion to set aside the judgment on the ground of newly discovered evidence that plaintiff after trial and before judgment conveyed the fee of the premises and that his grantees had since refused to execute the required release,—Held, that the plaintiffs’ grantees were as much bound by the judgment as though they had been parties to the action, the pendency of the action being in the nature of a lis peíidens. A release by plaintiffs in accordance with the judgment would, therefore, be effectual notwithstanding the prior conveyance.
    
    
      2. Abatement.] A suit to enjoin the running of an elevated railway in front of plaintiffs’ premises and for damages will not abate because of plaintiffs’ conveyance of the premises during the pendency of the action,
    
      Motion to vacate judgment.
    .The action was brought by David Moss and Morris Goldstein against the N. Y. Elevated Railway Company and the Manhattan Railway Company, to restrain defendants from operating their road in front of plaintiff’s premises and for damages.
    Judgment was awarded plaintiffs for past damages,, and a perpetual injunction granted, which should be avoided on defendants tendering a specified sum for the conveyance of the easement within a given time and the execution by plaintiff upon such tender of a proper release.
    The motion to vacate was made upon the ground that unknown to defendants, plaintiffs had conveyed the fee of the premises after trial and before judgment, and that the grantees refused to execute the release mentioned in the judgment.
    The further facts are fully stated in the opinion»
    
      Davies, Short and Townsend, for the motion.
    
      Leo C. Dessar, opposed.
    
      
       This rule is thus stated in 2 Abb. New Practice and Forms, 19.
      A transfer by plaintiff pending his action, though more rare than a transfer by defendant, is equally within the judicial rule of Us pendens
        
         But when the lis pende7is statutes were adopted this class of cases was not noticed, and provision was made only against transfers,etc., by a defendant, by allowing a notice to' be filed by a plaintiff and by a defendant who is in effect a plaintiff in a counter-claim. The result is, that as the lis pendens statute does not create the lien, but restricts it merely, providing that no purchaser, etc., under a defendant, shall be bound except he become such by record after the time of due filing, the omission of the case of a purchaser from the plaintiff leaves such a purchaser under the judicial rule, and he is bound by the mere pendency of the suit.
      
    
    
      
       Grath v. Ward, 2 Atk. 174 (holding that on a bill to establish a will, since the heir-at-law defendant is at liberty to impeach the will, the rule of lis pendens applies in favor of the defendant, and against a purchaser, from the plaintiff. Also dictum that on a bill to redeem from a mortgage, if there was a final decree against the mortgagor-plaintiff, a purchase from him pendente lite would be barred.
      Baird v. Corwin, 17 Penn. St. (Harris), 462. In this case (ejectment) it appeared that after the institution of an action of partition the plaintiff conveyed his interest in the land to persons who were not parties to the proceedings.—Held, that such conveyance imposed no obligation on the parties to the action to notify the purchasers of the subsequent proceedings in the action of partition. Lis pendens was of itself notice. The sale of the land under the proceedings in partition was a conclusive defense to the claim of the grantees of the plaintiffs pendente lite, who now brought the ejectment. Per Curiam : “ The purchase by the plaintiffs in this action of the interest claimed by Parkes Baird pending the writ of partition in which the latter was plaintiff, did not create any obligation to serve them with notice of the subsequent proceedings.
      
        Lis pendens is of itself notice, and the principle is applicable to writs of partition as well as to other actions......The sale of the land under the decree in the proceedings in partition is a conclusive defense to the claim founded upon the title derived from Parkes Baird pendente lite."
      
      In Hurd v. Case, 32 III. 45, the holder of a mortgage upon land, containing a power of sale, filed his bill to foreclose and made a junior mortgagee a party defendant. Pending the suit, the prior mortgagee sold the premises under the said power of sale to a third person. The junior mortgagee answered the bill and filed his cross-bill, making such purchaser a defendant, and prayed that said sale be set aside, that he be allowed to redeem, and that the prior mortgage be assigned to him upon paying amount due. Held (reversing a decree which had sustained a demurrer to the cross-bill), that he was entitled to the relief prayed for. Per Curiam: “ The pendency of that suit was notice to Otis, the purchaser, so as to subordinate the rights he acquired by the purchase to any decree which might be made in that suit. . . . “ By his purchase pendente lite he became an indispensable party to the cross-bill in view of the relief which was sought. If this necessity does not, often exist ... we find it may exist when necessarily the practice must be admitted.”
    
    
      
       This has nowhere been squarely held, but in my opinion it is clear. There is a dictum to the contrary in the opinion of Judge Rhodes, Corwin v. Bensley, 43 Cal. 253, 260, and note, but he does not notice the fact that the statute is not an affirmative, but a negative one. A similar impression contrary to the statement in the text is expressed in 24 Alb. L.J., 539.
      See, further, the following cases: Pending suit as to title to land, one of the defendants delivered to another defendant a deed executed by the plaintiff, conveying such and (in suit) to such defendants. Three days afterwards decree was entered declaring that the plaintiff was then the owner of the land in suit. Held, that all the parties to the decree were bound by it, and that the rights of the party holding the deed were cut off by the decree. McGregor v.' McGregor, 21 Iowa, 441.
      Drennen’s Adm. v. Walker, 21 Ark., 539, a purchase pendente lite by defendant of the interest of some of plaintiffs in the property in dispute will not be disturbed by this court where there is no appeal by such complainants from the decree.
      In Smith v. Brittenham, 109 III., 540, 549, it is held that where, after bringing suit, a plaintiff sells all his interest in the real estate in suit, no decree can be rendered until his grantee is made a party to the suit.
    
   McAdam, J.

The suit, which is in equity, to enjoio. the running of the defendants’ road and for damages, was tried November, 1889, and decided November 5,.. 1890, judgment being awarded for $1,542 past damages,, with a provision that if $3;ooo were paid, a conveyance of the easement should be executed and delivered to the.defendants. They now prove that after the trial, and! before judgment, to wit, on August 27, 1890, the-plaintiffs conveyed the fee of the property to Denis. Shea and others, and that the grantees refuse to-execute the required release. The defendants on this, evidence, said to be newly discovered, move to set. aside the judgment.

The action did not abate by the change of interest (Code, sec. 756), and the grantees are as much' bound by the judgment as though they had been parties, the pendency of the action being in the nature of a lis pendens. The past damages certainly belong to the™ plaintiffs, and there should be no new trial as to those. The $3,000 is to be paid only on the execution and tender of a release, and whether this comes from the plaintiffs or their grantees is of no consequence, so long as it accomplishes its purpose. The grantees can maintain no other action while the judgment herein is of record, as it is a bar- to any such proceeding. This being so, the decree needs no modification, and the defendants require no relief. How the plaintiffs arrange with the grantees or obtain the requisite release is of no consequence to the defendants, so long as they get a proper conveyance, duly executed, in a form sufficient to pass title to the easement.

Motion denied' without costs.  