Kestler v. Weissenfels

247 A.D. 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1936
• Status: Published

Opinion

Action to impress upon certain realty a lien of $3,300, paid by the plaintiff to the seller. The lis pendens and verified complaint in the action were filed on June 24, 1933, at ten-thirty-four a. m. The deed of the defendants who took title to the property from the seller, who was obligated to repay the plaintiff $3,300, was not recorded until ten-fifty-one a. m. on June 24, 1933, seventeen minutes after the lis pendens' was filed. Judgment for the plaintiff unanimously affirmed, with costs. The literal language of section 121 of the Civil Practice Act requires a holding that the plaintiff’s rights under a lis pendens are superior to those arising under an unrecorded deed. The principle underlying the doctrine of lis pendens does not rest upon the presumption of notice but upon reasons of public policy, manifested by the language of the section. (Kursheedt v. U. D. S. Institution, 118 N. Y. 358, 363; Ayrault v. Murphy, 54 id. 203, 206; People's Trust Co. v. Tonkonogy, 144 App. Div. 333, 335; 3 Jones Mort. [8th ed.] p. 262.) Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.