J. Henry Small Realty Co. v. Strauss

Appellate Division of the Supreme Court of New York

J. Henry Small Realty Co. v. Strauss

162 A.D. 658, 147 N.Y.S. 478, 1914 N.Y. App. Div. LEXIS 5993

Appellate Division of the Supreme Court of the State of New York·Decided May 8, 1914·Published·Cited by 4 cases

Opinion

Per Curiam:

This is an appeal from an order of the Special Term discharging and canceling of record a lis pendens. The action [659] is to enforce specific performance of a contract to erect certain specified and prescribed buildings on land sold by the plaintiff to the defendant corporation, which holds the land for the use and benefit of the other defendants, to impress a lien thereon for the unpaid purchase price, and for a decree that the defendant execute and deliver a mortgage to plaintiff, provided for in the said contract. We think that the action may be described as one to recover a judgment affecting the title to or the possession, use or enjoyment of real property within the purview of section 1670 of the Code of Civil Procedure. (Bachman v. Wagner, 40 N. Y. St. Repr. 757. And see Lawrence v. Saratoga Lake R. Co., 36 Hun, 467.) In determination of the right to file a Us pendens, the court will not seek to see whether the action is well brought. (Jones v. Armenia Insurance Co., 136 App. Div. 453; Brox v. Riker, 56 id. 388, 391; Lindheim & Co. v. Central Nat. Realty & Construction Co., 111 id. 275.)

The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

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

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Per Curiam:

This is an appeal from an order of the Special Term discharging and canceling of record a lis pendens. The action [659] is to enforce specific performance of a contract to erect certain specified and prescribed buildings on land sold by the plaintiff to the defendant corporation, which holds the land for the use and benefit of the other defendants, to impress a lien thereon for the unpaid purchase price, and for a decree that the defendant execute and deliver a mortgage to plaintiff, provided for in the said contract. We think that the action may be described as one to recover a judgment affecting the title to or the possession, use or enjoyment of real property within the purview of section 1670 of the Code of Civil Procedure. (Bachman v. Wagner, 40 N. Y. St. Repr. 757. And see Lawrence v. Saratoga Lake R. Co., 36 Hun, 467.) In determination of the right to file a Us pendens, the court will not seek to see whether the action is well brought. (Jones v. Armenia Insurance Co., 136 App. Div. 453; Brox v. Riker, 56 id. 388, 391; Lindheim & Co. v. Central Nat. Realty & Construction Co., 111 id. 275.)

The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

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

J. Henry Small Realty Co. v. Strauss, 162 A.D. 658, 147 N.Y.S. 478, 1914 N.Y. App. Div. LEXIS 5993 (N.Y. Ct. App. 1914).

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162 A.D. 658 (J. Henry Small Realty Co. v. Strauss) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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