Opinion
May Term, 1896.
Richard J. Lewis, for the appellant Blume.
Thomas J. Rush, for the appellant Kroemecke.
Edward W.S. Johnston, for the respondent.
This was a proceeding to obtain surplus moneys in an action for foreclosure. The premises which were sold belonged to one Joseph Blume, to whom they were conveyed on the 14th day of July, 1892, by the appellant Anton F. Blume and Mary V. Blume, his wife. The respondent, Mrs. Styles, claimed to have a lien on the premises by virtue of a judgment which she recovered against Joseph Blume on the 21st day of June, 1895. It was declared in the judgment that it should be a lien on the premises which were described in the mortgage in this case, from the 19th day of July, 1893, that being the date on which the notice of pendency in Mrs. Styles' action was filed. The referee reported that Mrs. Styles had the first lien among those as to which there was a conflict, and that she was entitled to have all the surplus moneys left after paying the amount of a lien which was conceded to be prior to any of those which are here referred to. Anton Blume claimed to have a cause of action against Joseph Blume to set aside the conveyance which had been made in July, 1892, because it had been procured from him and his wife by duress practiced upon them by Joseph Blume. Elizabeth Kroemecke, the other appellant, presented to the referee a judgment against Anton Blume and his wife, and claimed that she had a cause of action to set aside the conveyance made by Anton and Mary Blume to Joseph Blume, because it was made with intent to hinder, delay and defraud her as a judgment creditor. Each one of these people produced and proved before the referee a notice of pendency of action which had been properly filed in the office of the clerk, but it did not appear that either of them had ever caused a complaint to be filed in the clerk's office.
The notice of pendency of action, not having been followed by the filing of a complaint, was entirely inoperative to create a lien upon these premises. ( Weeks v. Tomes, 16 Hun, 349; Zoeller v. Riley, 100 N.Y. 102; Code Civ. Proc. § 1670.) Whatever may be the power of the referee in these cases to try and decide disputed claims to the surplus money — and it is, undoubtedly, quite extensive — it is quite clear that no one can assert successfully a right to have any of the surplus funds unless he has a lien upon the land. The surplus moneys stand in the place of the land for the purpose of distribution, and no one is entitled to share in them unless he can present as the basis of his right to procure a portion of them some instrument which establishes that he had upon the land a lien which he could enforce as against it. ( Delafield v. White, 19 Abb. N.C. 104; Fliess v. Buckley, 90 N.Y. 286.) When it appeared, therefore, that the appellants, although they might have had a cause of action against Joseph Blume, had neither of them taken any steps which were sufficient to establish a lien upon the land, it necessarily followed that Mrs. Styles, who was the only one of the three that had any lien, was entitled to receive the surplus moneys.
The order must be affirmed, with ten dollars costs and disbursements.
BARRETT, WILLIAMS, PATTERSON and INGRAHAM, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.