Julius Tishman, Appellant, v. Peter P. Acritelli, Respondent

Julius Tishman, Appellant, v. Peter P. Acritelli, Respondent. First Department, February 23, 1906. Lis pendens—Code of Civil Procedure, section 1671, construed — specific performance — when lis pendens not canceled in such action. Although the amendment to section 1671 of the Code of Civil Procedure, made by Laws of 1905, chapter 60, allows the cancellation of the lis pendens when “adequate relief can be secured to the plaintiff by a deposit of money or * - * an Undertaking,” such Us pendens should not be canceled when it appears from the complaint or by established facts that the plaintiff may be entitled to the specific performance of a contract to convey lands. In such event the money deposited or the undertaking would not give adequate relief.. Though the right to the specific performance can only be determined on trial the Us pendens will not be canceled when the complaint, or clearly established facts, show a right to specific performance. % Appeal by the plaintiff, Julius Tishman, from an order of the Supreme.Court, made at the New .York Special Term and entered in the office of the clerk of the county of New York on the 14th day of November, 1905, granting the defendant’s motion to cancel the Us pendens theretofore filed in the action, upon giving an undertaking. Harry A. Gordon, for the appellant. Abraham Nelson, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action was brought by the vendee for the specific performance of a contract for the sale of real property. The complaint, after alleging the making of the contract and an adjournment, by consent, of the time to close title, alleges that at the time and place mentioned the plaintiff was ready, willing, and able and offered to carry out and perform said contract, but that the defendant failed and refused to perform said contract onhispart; failed and refused to convey a.good and marketable title to said premises to the plaintiff free and clear from all incumbrances,'with the exception of the mortgages and incumbrances specified in said contract, and that by. reason of the premises the plaintiff has been and will be damaged in . the sum of $5,000. The judgment demanded is that the defendant be compelled to specifically perform and carry out said contract on his part, as'in said contract provided, or in ease specific .performance , thereof cannot be had by the plaintiff as therein provided, that the plaintiff have judgment against the defendant for "the - sum of $5,000, besides costs. The' answer’, by not denying, admits the making of the contract, denies that the plaintiff was able to perform, or that the defendant failed or refused to perform, -and denies the damage alleged. Upon an affidavit of the defendant a motion was then made to vacate the-notice of the pendency of action filed by the plaintiff, which motion was granted upon the defendant giving an undertaking in the sum of $7,000. This motion was made under the amendment to section 1671 of the Code of Civil Procedure which took effect on September 1, 1905. (See -Laws of 1905, chap.- 60.) That section provides that “In.any .action * * * in which a notice of the pendéncy thereof has been filed, and in which it shall appear to the court upon ' a motion made as hereinafter provided, that adequate relief can ‘be secured to the plaintiff by a deposit of money, or, in the, discretion of the. court, by the giving of an -undertaking, as hereinafter'provided, * * * any defendant, or any. other person having an' interest in the property affected by the action, may apply for the cancellation-of such notice.” • ' In Bresel v. Browning (109 App. Div. 588) we held that where it appeared by the complaint that the only relief to which the plaintiff would be entitléd was a judgment foi’ a "sum of money the Ms pendens should be canceled tipon the making of a deposit or the giving of an rindertaking sufficient to secure the payment of the amount that the plaintiff claimed. On the other hand, we think that where the relief demanded is not the payment of a sum of money, but involves the right of the plaintiff to a conveyance of real property described, the Us pendens should not be canceled. It is only where “adequate relief can be secured to the plaintiff by a deposit of money ” or by the giving of an undertaking that the court is authorized 'to cancel the Us pendens. If the plaintiff, upon the facts alleged in the complaint or facts clearly established, is entitled to a specific performance of the contract and a • conveyance of the real property contracted to be sold, it is evident that adequate relief cannot be secured to the plaintiff by the deposit of a sum of money: The question depends ordinarily upon the relief that the plaintiff demands in the complaint and to which, under the allegations of the complaint, he is entitled. If the judgment asked, and to which the plaintiff would be entitled if the facts alleged in the complaint are true, includes something more than the payment of a sum of money, then the deposit of a sum of money would not secure to the plaintiff adequate relief if he succeeds. Here the plaintiff claims that he is entitled to a conveyance of the property. It is true that he also asks in the alternative that if such a conveyance be found impossible he be allowed to recover the damages that he has sustained, but that is only in case that he cannot obtain by the conveyance a good title to the property that the defendant has agreed to convey, a question which can only be determined upon the trial. The right of the plaintiff to retain the notice of pendency of action must be determined upon the allegations of the complaint, or facts clearly established, and we think that in this case the right of the plaintiff to a decree for specific performance of the contract and a conveyance of the real property therein described must be determined upon the trial. (Smadbeck v. Law, 106 App. Div. 552.) It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. O’Brieh, P. J., Laüghlih, Clarke and Hoüghtoh, JJ., concurred. Order reversed, with ten. dollars costs and .disbursements, and motion denied, with ten dollars costs. Order filed.