Thomas P. Fitzsimons and De Lancey T. Smith, Appellants, v. William Drought and Catharine Walsh, Respondents

Thomas P. Fitzsimons and De Lancey T. Smith, Appellants, v. William Drought and Catharine Walsh, Respondents. Lis pendens — when an order canceling it may be made. Where, in an action brought to recover a judgment affecting the title to real property, a notice of pendency of action is filed in accordance with section 1670 of the Code of Civil Procedure, the circumstances enumerated in section 1674 of the Code must exist before the court is authorized on motion to cancel such notice, that is, the time to appeal from a final judgment must have expired or the plaintiff must have unreasonably neglected to proceed with the action. Appeal by the plaintiffs, Thomas P. Fitzsimons and another, 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 Few York on the 18th day of January, 1897, canceling a notice of the the pendency of the action. James P. Campbell, for the appellants. Albert W. Venino, for the respondents. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action having been brought to recover a judgment affecting the title to real property, under section 1670 of the Code, the plaintiff could file a notice of pendency of action, and this, irrespective of the question as to whether the action was well brought or not. In such a case the court has power to cancel the notice of pendency after the time to appeal from a final judgment in the action has expired, or the court may do so if the plaintiff unreasonably neglects to proceed with the action. It is undoubtedly true that where a notice of pendency of action is filed in an action in which such filing is not authorized, the court may set it aside. But where such notice is filed in a proper action it would seem that the circumstances enumerated in the Code must exist before the court is authorized to act. The motion in the case at bar was, therefore, prematurely made, and the order should be reversed, with ten dollars costs and disbursements, and the motion dismissed, without costs and without prejudice to a renewal of the motion. Rumsey, Patterson, O’Brien and Ingraham, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion dismissed, without costs and without prejudice to a renewal of the motion.