
    BRAINERD v. WHITE.
    N. Y. Superior Court; General Term,
    December, 1882.
    Action to charge Separate Estate op Married Woman.—Promissory Mote.-—Married Woman.—Pleading.—Lis Pendens.
    Under Code Civ. Pro., § 1670,—which authorizes the filing of a notice of pendency of action “in an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property,”—a notice duly filed the court cannot cancel on the ground that the plaintiff has not a sufficient cause of action, if the complaint be one on which he would be entitled on default to relief so affecting real property.
    In an action against a married woman on her promissory note, which by its terms charged her separate estate generally with its payment, —Held, that, on an allegation in the complaint that she held specified real property as her separate estate, a notice of pendency of action to charge it could be filed.
    
      Appeal from an order granted by the special term of the superior court of the city of New York, denying a motion to cancel a notice of li.s pendens.
    
    This action was brought by Eras tus Brainerd, indorsee of a promissory note, against its maker, Martha White, a married woman, who, by the terms of the note, expressly charged her separate estate with its payment. It was drawn payable to the order of Bichard A. Manifold, who had rendered services at her special request, and for the benefit of her separate estate ; and he was joined as a co-defendant herein.
    The complaint set forth that Manifold, for value received, indorsed the note, and delivered it before maturity to Brainerd & Co., who, for a valuable consideration, duly assigned the same to the plaintiff, who thus became the lawful owner and holder thereof; that it was duly presented for payment, was protested, • and notice thereof properly given; and that no part of it had been paid.
    It further alleged: “That the defendant Martha White is now the record owner of the following described real estate in the city of New York, viz. : ”— [Here followed the description.] “Wherefore the plaintiff demands judgment against the defendants for the sum of $515, with interest thereon from March 1, 1881, and $1.50 costs of protest, besides the costs of this action, and that the said real estate of the said defendant Martha White is charged with the payment thereof, and that the same is a lien thereon.”
    The notice of pendency of the action (filed under Code Civ. Pro. § 1670) was as follows :
    
      “Notice is hereby given that an action has been commenced upon a complaint of the above-named defendants, for the purpose of having it adjudged that the plaintiff do recover of the defendants the sum of $515, with interest thereon from March 1, 1881, and $1.50 costs of protest, besides the costs of this action, and that the hereinafter described real estate of the said defendant Martha White is charged with the payment thereof, and that the same is a lien thereon, and that the premises affected by this action were, at the time of the commencement thereof and at the time of the filing of this notice, situated in the Twelfth ward of the city of New York, and are described as follows [Description.]
    The defendant Martha White, before answering, moved, upon all the papers and proceedings in the action, that this notice “ be canceled and discharged of record on the ground that the same is improperly filed and recorded, by reason of the fact that the cause of action set out in the complaint and the notice of Us ;pendens do not constitute a lien upon the property in said complaint described, or upon any part thereof, and likewise on the ground that the law does not allow a notice of Us pendens in the action or cause of action set forth in said complaint; and that the county clerk be commanded to so mark and cancel the same, and for such other and further relief as to the court shall seem just, together with the costs of this motion.”
    
      The plaintiff opposed this by affidavit. The special term denied the motion, without opinion, referring to the case of Sanders v. Warner, 2 Weekly Digest, 507. '
    Defendant White appealed to the general term.
    
      Cephas Brainerd, for the defendant, appellant.
    I. This is not an action in which, under section 1670 of the Code, a Us pendens is allowed to be filed. It is not an action to establish a specific lien. The complaint goes on the distinct ground that by the language of the note charging her separate estate, and by the fact that its consideration was work and materials furnished for the benefit of her separate estate, the holder of the note acquired a specific lien on any real estate owned by Martha White, or on all of it. Such an idea is not countenanced by the Code, or by any adjudicated casé. A married woman’s note, independently of the statute, would have no value. ‘ The addition to the ordinary note of appropriate words declaring it a charge on her separate estate, makes it a valid and enforceable note. It can be sued upon at law. With these words it is simply and only a valid contract for the payment of money. No lien follows from it pendente lite. But if the note did not contain the words prescribed by the statute, it Avould still be open to its holder to plead, and to prove on the trial, that its consideration was used for the benefit of the maker’s separate estate (Second National Bank of Watkins v. Miller, 63 N.Y. 639 ; Hier v. Staples, 51 Id. 136). If this allegation was sustained by proof, a judgment at law would follow against her, under which an execution would issue collectible out of her separate estate, first, out of her personal estate, and failing that, out of her real estate (Gosman v. Cruger, 69 N. Y. 87; S. C., 25 Am. R. 141; affirming 7 Hun, 60 ; and see Record in same case, Court of Appeals cases, Bar Ass. vol. 3, 1877; Bennett v. Morehouse, 42 N. Y. 189 ; Maxon v., Scott, 55 Id. 247). The allegation in the complaint then is simply and only a presentation of facts necessary to give validity to the note, if it had not contained the statutory words. In such an action as this it is not competent for the plaintiff to file a Us pendens, and tie up every lot of land a defendant may own (Leitch v. Wells, 48 N. Y. 585). The Code contemplated nothing of this sort; it contemplated a specific action "with reference to a specific piece of property, and such has been the doctrine of Us pendens in all its aspects for a hundred years, not only under formal notice, but under notice presumed from the fact that an action had been commenced (Fitzgerald v. Blake, 28 How. Pr. 110; Mills v. Bliss, 55 N. Y. 139).
    II. Possibly this plaintiff could, by allegations in his complaint showing that the work and materials claimed as constituting the consideration of the note went for the improvement of some specific real estate, have justified the filing of a Us pendens. It would then be an action analogous in principle to Mills v. Bliss, supra. Sufficient for this motion is it, that the complaint contains no such allegations. The court in denying this motion relied upon Sanders v. Warner, 2 Weekly Dig. 507. I insist that neither the book nor the case is authority. The case—the opinion and the argument of counsel (which I hand up) show that the original action was brought to enforce an alleged specific lien against the special property in dispute. That on the trial that specific lien was adjudged ; from that judgment an appeal was taken, and affirmed by default. The decision of the general term cited goes solely on the ground that the original judgment just as it was rendered must be enforced. The court in that case said it would not inquire whether the judgment declaring that lien effective from the day the Us pendens was filed, was right or wrong.
    
      
      Henry Arden, for the respondent, plaintiff, cited the following cases : Mills v. Bliss, 55 N. Y. 141; Wilmont v. Meserole, 41 Super. Ct. (J. & S.) 274, 276 ; Sanders v. Warner, 2 Weekly Dig. 507.
    
    
      
       The following is the section in question.
      §1670. “In an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment of real property, the plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file, in the clerk’s office of each county whe're the property is situated, a notice of the pendency of the action, stating the names of the parties ancl the object of the action, and containing a brief description of the property in that county, affected thereby. Such a notice may be filed with the complaint before the service of the summons; but, in that case, personal service of the summons must be made upon a defendant within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced; or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in chapter fifth of this act.”
    
   Sedgwick, J.

I am of opinion that the court properly denied the motion to cancel the notice of Us pen-dens. It is not necessary to assert that in no case would the court have power to cancel a notice of Us pendens before, a settlement, discontinuance or abatement of the action. It is enough if it had not the power in a case of this kind.

The complaint claims that, by reason of the facts therein stated, the plaintiff is entitled to a judgment that the real estate of the defendant White be charged with the payment of the promissory note alleged to have been made by her. It is not material to determine now whether he has or has not, by reason of the facts, a right to such a judgment. Unless the defendant should interpose in some competent way, if she made entire default, the plaintiff could enter such a judgment. Then, between them, it would be res adjudicada. The plaintiff has the right to make the claim, and at least have it litigated. Such a judgment would affect “ the title to real property ” (§ 1670, Code Civ. Pro.). It would be an incumbrance upon it.

Before the statute requiring a notice of Us pendens to be filed, in order to give notice to strangers of the existence of the right claimed in the action, constructive notice was given by the filing of the bill of complaint and beginning the suit. In this former practice the complainant had the benefit of notice, whether he afterwards succeeded or failed, and purchasers took at their peril. And it may be said that the statute, so far as real estate was concerned, only substituted for notice by mere filing and sefvice of subpoena, the specific notice now required to be filed, leaving strangers, in the latter as in the former case, to act at their own risk.

En this present case, if the motion had been granted, it would have been in consequence of the defendant contending that the plaintiff had not legal right to have the real estate charged, and of the court so holding. That would have been a determination of the plaintiff’s cause of action against him. If, at the subsequent stage of the action, this was followed, the issues would practically be determined upon motion, instead of upon trial. Or, if it were not followed,-the action might be sustained and the benefit of the notice gone. The matter cannot be heard upon motion.

Under section 1670, the nature of the judgment which the action is brought to recover, is the description of the action in which a notice of lis pendens may be filed, and not the validity of the cause of action as described by the complaint.

The section mitigates somewhat the supposed consequence of unfounded claims of this kind. The notice may be canceled if there be unreasonable neglect to proceed in the action.

It may be proper to add, that cases where the complaint does not, on its face, make a claim for a judgment that would affect real estate, have not been referred to.

Order affirmed, with $10 costs.

Freedman and Russell, JJ., concurred.  