Meissner v. Van Iderstine

206 Misc. 418, 131 N.Y.S.2d 518, 1952 N.Y. Misc. LEXIS 3000

Opinion

Pette, J.

Plaintiffs — the owners of a parcel of land lying east of lands owned by defendants, and separated therefrom by a private road — bring this action for money damages and to restrain defendants from using a catch basin and pipe located on defendants’ lands to empty on the lands of plaintiffs. They have filed a notice of pendency of action with their complaint. The instant application is for an order canceling the Us pendens upon the ground that its filing is not authorized under section 120 of the Civil Practice Act, or in the alternative for its discharge pursuant to section 124 of the Civil Practice Act.

By their complaint, plaintiffs do not claim any title, right to possession or the use or enjoyment of the property described in the notice of pendency. "What they seek is money damages and to enjoin the defendants from using the catch basin and its appurtenances which are located on defendants’ lands.

The court is accordingly of the opinion that on the plaintiffs’ complaint, the lis pendens filed by them is not authorized by section 120 of the Civil Practice Act. Motion granted.

Settle order.