Opinion
November Term, 1896.
Samuel Cohn, for the appellant.
Jacob H. Shaffer, for the respondent.
This is an appeal from an order denying a motion made by the owner of certain real estate situated in the city of New York to compel the cancellation of record of notices of lis pendens filed against the premises in a pending action to foreclose a mechanic's lien. There are certificates appearing in the record signed by the clerk of the city and county of New York stating that all mechanics' liens filed against the property referred to have been discharged. The moving papers consist of an affidavit showing the filing of a bond to secure the lien of the party opposing this motion, the making and entry of an order of this court discharging the lien, and also setting forth reasons why the cancellation of the notices of lis pendens is important and is asked for. There were no affidavits submitted in opposition to the motion, and the question, therefore, arises upon the papers presented by the moving party, the appellant here. The learned judge in the court below denied the motion simply on the ground that at this stage of the proceedings the court had no power to discharge the notices of lis pendens, the action being undetermined. This decision was based upon the provisions of section 1674 of the Code of Civil Procedure. It is provided by that section that after an action is settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, etc., direct that a notice of the pendency of an action filed as prescribed in the four preceding sections be canceled of record by a particular clerk or by all the clerks with whom it is filed and recorded. The effect of this provision, as has been determined ( Beman v. Todd, 124 N.Y. 114), is that there can be no cancellation of the notice, save in the manner prescribed by the Code.
It is claimed by the appellant that the provision is inapplicable to this case, for the reason that the procedure in mechanic's lien cases is under the special provisions of the act of 1885 (Chap. 342), and not under the Code, and that, therefore, the court has a general power to discharge a lis pendens filed in a mechanic's lien action. That is not true. There is no such general power. The filing of the lis pendens in an action to foreclose a mechanic's lien is merely the filing of a notice as in any ordinary action to foreclose an incumbrance. It is not a proceeding independent of and disconnected from a civil action brought under the authority of and to be conducted in the way prescribed for all civil actions by the Code of Civil Procedure, and when an action to foreclose such a lien is begun, a notice of lis pendens is required to be filed in that action as constructive notice to any one taking under the owner or the persons against whom the lien is filed. A notice of lis pendens filed in such an action performs precisely the same office as in any other case in which the filing of a notice is permitted by law. There is no difference in legal effect between a formal notice of lis pendens, as constructive notice, and the filing of a bill in chancery followed by service of a subpœna. Under the Chancery practice, such filing and service were constructive notice which continued until the case was finally disposed of, and the words of the Code of Civil Procedure with respect to a notice of lis pendens merely recognize the same rule that existed in equity before the act of 1823 (Chap. 182, § 11, p. 213), which was incorporated in the Revised Statutes (2 R.S. 174, § 43), and which provided that to render the filing of a bill in chancery constructive notice to a purchaser of real estate, the complainant must file with the clerk of the county in which the lands to be affected by such constructive notice were situated, a notice, in writing, of the pendency of the suit. The rule, both under the Code and the practice in the Circuit Courts, in Equity and in Chancery, anterior to the passage of the Code, is the same with regard to the duration of the constructive notice given by a suit pending, and, therefore, the court below was correct in its view of the general power of the court in the matter.
But while a general authority to remove a notice of lis pendens does not reside in the court, the right of the moving party may, by a fair construction, be brought within the provisions of the Code. An entirely new feature is introduced into the subject by the enactment known as the Mechanic's Lien Law, and its provisions respecting the removal or discharge of mechanic's liens upon real property. It is provided in that law that, upon security being given in the form of a bond, an application may be made to the court pending a suit to foreclose a lien, to discharge the lien; and that, upon the approval of such bond and the discharge of the lien by order of the court, the lien shall be transferred from the property to the bond. That procedure at once frees the real estate from the lien. There is no longer any lien upon the property; there is something substituted for it to which the lien attaches ( Morton v. Tucker, 145 N.Y. 244), and the action thereafter ceases to be an action affecting real estate. As such, it is abated, that is, put an end to, beaten down ( abattre). Although it may be necessary, in the final judgment in such an action, to declare the existence at the time of the beginning of the suit of a lien on the real estate, yet the claim is in no way and under no circumstances enforcible against the real estate. This change in the nature of the action is one operated by the statute. It still remains an action to foreclose a lien, but only as against that which is substituted for the real estate. One of the provisions of the Code with respect to the filing of a notice of lis pendens is that in actions brought to recover judgments affecting the title to, or the possession, use or enjoyment of real property, the plaintiff may file a notice of the pendency of the action, which shall be constructive notice to purchasers. This action has ceased to be one in which a purchaser would be bound by any notice of its pendency; no right claimed by the plaintiff or any of the defendant lienors is to be protected by the suit further than as against the substituted security. It has, therefore, completely expired as an action in which a notice of lis pendens is necessary to charge any person dealing with the land itself. No claim to or upon it remains for a purchaser to take notice of. The object of filing the notice has ceased, and there is no necessity for nor propriety in the maintenance of it on the record where it would remain as a cloud upon the owner's title and an impediment in the way of his selling or mortgaging his land and thus defeat the very purpose of the statute in allowing the transfer of the lien. The changed status of the action has converted it into one in which a notice of lis pendens against the land is not necessary nor required, and it may be so treated. The land is no longer involved in the foreclosure action, which is effectively ended as to it. For that reason we think the motion should have been granted and the order appealed from must be reversed, with costs, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.