Werner v. Jackson

115 A.D. 176, 100 N.Y.S. 763, 1906 N.Y. App. Div. LEXIS 3652

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1906
• Status: Published

Opinion

Per Curiam:

This is an appeal from an order of Special Term canceling a lis pendens upon giving security. The judgment demanded by the complaint was that the defendant Simon P. Flannery be decreed to specifically perform a contract for the conveyance of real estate in the city, of New York, and that in the alternative the plaintiff be decreed or adjudged to have a lien for the amount dejiosited upon the execution of the contract.

It has been determined in this department that the right of-the plaintiff to retain the notice of pendency of action in an action for a decree for specific performance of the contract for a conveyance of real property must be determined upon the allegations of the complaint, or facts clearly established, and that upon such a motion as in the case at bar we are not authorized to look into the facts as upon a trial, nor 'to search the complaint as upon a demurrer. (Tishman v. Acritelli, 111 App. Div. 237; Lindheim & Co. v. Central Nat. Realty & Construction Co., Id. 275; Wolinsky v. Okun, Id. 536; McCrum v. Lex Realty Co., 113 id. 58.)

Upon those authorities the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — O’Brien, P. J., Ingraham, Clarke and Houghton, JJ.

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