
    Lorena Ridgely Jones, Respondent, v. Armenia Insurance Company of Pittsburg, Pennsylvania, and Others, Defendants, Impleaded with George H. Calvert and Arthur Berry, as Ancillary Receivers of Guardian Fire Insurance Company of Pennsylvania, Appellants.
    First Department,
    February 4, 1910.
    Lis pendens — action must affect lands — demand for judgment conclusive— complaint not justifying lis pendens.
    A Us pendens cannot be filed unless the action is brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property.
    If the complaint demands a judgment affecting the title to or the use, possession or enjoyment of real property, the court will not look to see whether the cause of action set forth is one in which such judgment can be granted— it is sufficient that such judgment is demanded.
    A complaint which in substance alleges that the plaintiff assumed an obligation-in a certain sum for the benefit of an insurance company which undertook to indemnify her on account thereof, but neglected to do so, and demands that the company or its successor make good the undertaking, but asks a mere judgment in personam, making no claim affecting a title to or interest in lands, does not justify a Us pendens. The court on motion will cancel the Us pendens without imposing terms on the defendant.
    Appeal by the defendants, George H. Calvert and another, as ancillary receivers, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1909, as amended by an order entered on the 28th day of December, 1909, granting upon terms the said defendants’ motion to cancel a Us pendens herein, and also from an order entered in said clerk’s office on the loth day of December, 1909, denying the said defendants’ motion for a reaigument of said motion to cancel the Us pendens.
    
    
      WilUam M. CJhadhourne, for the appellants.
    
      Holmes Jones, for the respondent.
   Ingraham, P. J.:

The action is brought to relieve the plaintiff from liability under a certain contract winch she entered into f.or the sole benefit, ad vantage and profit of the Armenia Insurance Company, and without any consideration to her, wherein she agreed to pay the sum of $10,000, and also agreed to purchase a certain building located at Ho. 80 William street, in the city of Hew York, and to pay therefor $65,000 in cash, and to give her mortgage covering the property accompanied by her. bond, and take title thereto subject to two prior existing mortgages aggregating $161,000. In pursuance of that contract the plaintiff purchased the said premises; various sums of. money which she had obligated herself to pay were paid by money furnished by the insurance company; she received a deed of the real property, -and gave her bond, by which she covenanted to pay the grantors the sum of $161,000, and executed a mortgage to secure the said bond, which was delivered to the grantors; plaintiff subsequently, at the request of the insurance company, conveyed the property tó a corporation, organized as a holding company, in which the insurance company owned all the stock; and all of the consideration received by the plaintiff for such conveyance was transferred to the insurance company. The plaintiff has demanded from the insurance company that it execute proper and sufficient instruments and obligations, assuming payment of this mortgage, and that it secure from the holders of the obligations of the plaintiff the bond, instruments and documents signed by the plaintiff and return the same to her; the Armenia Insurance Company is alleged to be in a precarious financial condition, and the only adequate and reasonable protection which- can be given the plaintiff is that said defendant pay the obligation of $161,000, or deposit a sufficient sum of at least $100,000 in court, to be applied upon -such mortgage as the installments therefor mature, and that if at any time the said defendant default in paying interest, taxes, etc., on said property, a receiver be at once, appointed to receive the rents, income and profits thereof, and use the same as .this court shall direct. It is alleged that plaintiff has no adequate remedy at law for the reason that her damage- has not been liquidated, and that by the time such damage is ascertained the said insurance company will become wholly insolvent and unless the plaintiff has early and speedy relief the condition of the Armenia Insurance’Company may become so involved that no relief can-be granted this plaintiff. Upon these facts -the judgment that, the plaintiff asks for is': First. That the Armenia Insurance Company be required to obligate itself by sufficient instruments in writing holding the plaintiff harmless on account of the said bond and mortgage of $161,000. Second. That the Armenia Insurance Company be required to pay into court the sum of $161,000 or such sum as may be found necessary to protect the plaintiff and to enable her to meet her obligations to the defendant executors who are the holders of the bond and mortgage. Third. For the appointment of a receiver of the mortgaged premises and the receiver to be especially required to keep said building insured against loss or damage by fire. Fourth. That a decree may be entered declaring the defendant the Armenia Insurance Company and the holding company severally liable for the payment of the said mortgage of $161,000, and that the plaintiff be decreed to be only secondarily liable on said mortgage, and for such other and further relief as may be just and equitable.

When this complaint was filed the plaintiff filed a notice of pendency of the action. In such notice it is stated that the action was for the purpose of having it decreed that the defendant is a corporation and is primarily liable for this mortgage and requiring the insurance company to pay into court $161,000, to be applied upon such mortgage as the same shall mature, and for the appointment of a receiver of said premises to operate and maintain the said building thereupon. It is then alleged that “ the mortgaged premises affected by the said foreclosure were, at the time of the commencement of this action, and at the time of the filing of this notice, situated in the Borough of Manhattan, County of New York,” and are described by metes and bounds. Since the commencement of this action the Armenia Insurance Company has consolidated with another company under the name of the Guardian Fire Insurance Company. The appellants are ancillary receivers of the consolidated company and moved to vacate this lis pendens, which motion was granted, but upon terms which virtually amounted .to a denial, and the receivers appeal.

By section 1670 of the Code of Civil Procedure it is provided that “ in an action brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property,” the plaintiff may file in tlié clerk’s office a notice of the pendency of the action. The only authority given by the Code of Civil Procedure for the filing of the notice of pendency of action is in an action brought to recover a judgment affecting the “ title to or the possession, use or enjoyment of real property.” If an action is not brought for that purpose a notice of the pendency, of the action would be clearly unauthorized. Thus in an action to enforce a mere personal obligation unless it was accompanied by a claim of lien of some kind which affected real property such a notice would be clearly unauthorized by the Code, and certainly the court would have power to strike such an unauthorized notice of pendency of action from the files. The question that must always be presented in an action of this kind is whether the complaint states a cause of action affecting the title to real property or the use, possession or enjoyment thereof. If it does and the complaint demands a judgment affecting the title to or the use, possession or enjoyment of real property, then the court cannot look to see whether the cause of action set forth in the complaint is one in which such a judgment can be granted — it is sufficient if such a judgment is asked for. (Schomacker v. Michaels, 189 N. Y. 65.) It is evident that none of the relief asked I ■' for in the complaint as it stands will affect the “ title to or the possession, use or enjoyment of real property.” Nothing is asked except a judgment in personam against the Armenia Fire Insurance Company. The prayer for a receiver is merely incidental to the main relief. The plaintiff, however, insists, and not without reason, that she is not limited to the relief specifically asked for -in the complaint, but may be awarded any relief which she may appear to be-entitled to, and that if the-allegations of the complaint would'justify .any judgment in her favor affecting the title to or the possession, use or enjoyment of real property the Us pendens should remain undis-' tui'bed. So much may be admitted and yet the Us pendens be canceled. The plaintiff’s complaint is that, she has assumed an obligation of $161,000 for the benefit of the Armenia Insurance Company; that said company undertook to indemnify and save her harmless on account thereof and has neglected tó do so. The purpose of the action is to compel the Armenia Company or its successor in interest tó make good this undertaking. No claim is made of any title to or interest in the real estate described in the complaint, nor is any defect or invalidity asserted "in the mortgage which accompanied plaintiff’s assumption of debt. The facts suggest no judgment that can appropriately lie rendered, and certainly none is asked for, which can in any manner or to any extent affect the title to or the possession, use or enjoyment of real estate. • The motion should, therefore, have been granted unconditionally, and the order appealed from is, therefore, modified by striking out all that follows after the words “ Ordered that said motion be and the same hereby is granted,” and as so modified is affirmed, with costs and disbursements to the appellants. The appeal from the order denying a motion for reargument is dismissed, without costs.

McLaughlin, Clarke, Scott and Dowling, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, with costs to appellants. Appeal from order denying reargument dismissed, without costs. Settle order on notice.  