
    Lillie Lawlor, Plaintiff, v. The Densmore-Compton Building Company, Defendant.
    (Supreme Court, New York Special Term,
    October, 1908.)
    Lis pendens: Actions and property to which lis pendens applies — Action for specific performance by one having contract for proprietary lease: Commencement and pendency of action and notice — Cancellation of notice — On application for cancellation court will not scrutinize complaint.
    Where the defendant, a building company, agreed with the plaintiff to sell her an apartment in a building thereafter to be erected and to permit her to pay therefor by commissions arising from her procuring purchasers of other apartments; and where, in furtherance of the plan, a corporation is organized and its stock subscribed for by the purchasers to the extent of the cost of their apartments, under an agreement that the holders of the stock are to be entitled to proprietary leases of their apartments upon the completion of the building; and where the building company refuses to carry out its contract and threatens to sell and otherwise dispose of the apartments, an action by the plaintiff for the specific performance of the contract with her is an action brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property, within section 1670 of the Code of Civil Procedure; and the plaintiff may file a notice of the pendency thereof.
    On a motion by the defendant to cancel the lis pendens, the court cannot determine whether or not the action is well brought nor will it critically examine the complaint to see whether a demurrer thereto would be sustained.
    Motion to cancel notice of pendency of action.
    Gignoux & Reid (Max D. Steuer, of counsel), for defendant and motion.
    Cushing & Cushing, for plaintiff, opposed.
   Giegerich, J.

It appears from the complaint that the defendant, the Densmore-Compton Building Company, and the plaintiff entered into an agreement by the terms of which the former agreed to sell to the latter duplex apartments upon the ninth and tenth floors of an apartment building to be thereafter erected upon the southeast corner of Fifty-eighth street and Park avenue, borough of Manhattan, said apartment to cost $22,500, It is further alleged that the plaintiff was one of the originators and prime movers In the organization and promotion of this co-operative apartment building plan, and because of her executive ability, social prominence and influence, and in recognition of her services already given, and for the purpose of acquiring her future sendees and influence, and in lieu of any and all other profits to which she would have been otherwise entitled, the defendant agreed to permit her to pay for her apartments out of commissions arising from her procurement of purchasers of other apartments, and, in the event of her commissions not being sufficient to purchase said apartments, the defendant agreed to loan her the balance at four per cent., taking a mortgage on said apartments, which mortgage could be paid off by commissions upon apartments ” which the plaintiff might sell in other co-operative apartment buildings to be thereafter erected by the defendant. In furtherance of this' plan a corporation known as “No. 471 Park Avenue, Incorporated,” was organized and stock subscribed for by the purchasers to the extent of the cost of their apartments, and the holders of said stock were to be entitled to a proprietary lease of said apartments upon the completion of the building. The complaint further alleges that the defendant, The Densmore-Compton Building Company, now refuses to carry out its contract and threatens to sell and otherwise dispose of the apartments. The relief asked for in the complaint is an injunction against the defendant from interfering with plaintiff’s possession and occupation of said apartments, and for specific performance of the contract on its part, including the giving of a proprietary lease of the apartments in question to the plaintiff. A notice of pendency of action has been filed which the defendant seeks by this motion to have canceled. A lis pendens may be filed in an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment of, real property. Code Civ. Pro., § 1670. The defendant contends that if the plaintiff acquired any rights she acquired them by the execution by her of the subscription agreement and its acceptance by the defendants or one of them, and that her rights are those of a subscriber to stock and not those of one claiming to recover a judgment affecting the title, possession, use or enjoyment of real property. By the terms of the subscription agreement and contract with the defendant the plaintiff was to be entitled to a proprietary lease of said apartments, and she became, to all intents and purposes, the equitable owner of the same. What the plaintiff bought was not stock as an investment, but apartments in a building to be her home where she would reside, and the stock subscribed for was a mere incident of that ownership. The fact that her interest is in only part of the whole premises manifestly does not make it any the less an interest in real property, Neither is the fact that her interest is in a leasehold instead of the fee a reason why a Us pendens should be denied her. In Willmont v. Meserole, 41 N. Y. Super. Ct. 274, the action was brought to procure the avoidance or cancellation of record of an assignment of a lease for a term of thirteen years, and it was held that such an action was one affecting the title to real property, and that the Us pendens was properly tiled. Ruck v. Lange, 10 Hun, 303, was brought to procure the specific performance of a contract for the sale of a leasehold interest in land having about twenty years to run, and it was held that the action affected the title to real estate and that a notice of pendency of the action could be filed. In the present case the leasehold interest of the plaintiff would seem to be of a higher character than in either of the cases just cited. On behalf of the defendant it is objected that the complaint fails to show a- contract sufficiently definite to entitle the plaintiff to specific performance, and it is a serious question whether the objection is not well grounded] but upon such a motion as this the court cannot determine whether or not the action is well brought or critically examine the complaint to see whether a demurrer would be sustained. If the object of the action is to recover a judgment specified in section 1670 of the Code, the court has no power to cancel the notice of pendency of action, because it would be of the opinion from the allegations of the complaint that the action could not be maintained for that purpose. Brox v. Riker, 56 Ap. Div. 388; McCrum v. Lex Realty Co., 113 id. 58; Werner v. Jackson, 115 id. 176, and cases cited. Within the authorities above cited this action must be deemed to fall within the provisions of section 1670 of the Code of Civil Procedure. The motion must, therefore, be denied, with ten dollars costs.

Motion denied, with ten dollars costs. '  