Opinion
April 10, 1908.
G.L. Rohan, for the appellant.
Harold Swain, for the respondent.
The defendant appeals from an order denying his motion to cancel a lis pendens. The action is by a vendee against a vendor to enforce a contract for the sale of real property. The lis pendens was filed on November 14, 1907, and an amended notice of pendency of action, with an amended summons and complaint, was filed on November 18, 1907. The summons and complaint were not served upon defendant until January 20, 1908, more than sixty days after the amended notice had been filed, and no attempt was made to effect substituted service. The notice of motion to cancel the lis pendens was served on January 28, 1908. The plaintiff's explanation of the delay in making service is very unsatisfactory. Her attorney seems to have made no serious attempt to make such service until January 6, 1908, and although it is suggested that defendant evaded service, no proof of that fact is produced. Section 1670 of the Code of Civil Procedure provides that when a notice of pendency of action is filed with the complaint personal service of the summons must be made upon a defendant within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced or service thereof must be made without the State. The language is peremptory, and a failure to comply with it nullifies the lis pendens. ( Cohen v. Ratkowsky, 43 App. Div. 196.) Section 1674 authorizes the court in its discretion to cancel a lis pendens if a plaintiff filing the notice unreasonably neglects to proceed in the action. To neglect to make service or commence publication within sixty days after the filing of the notice is one form of unreasonable neglect to proceed with the action ( Cohen v. Ratkowsky, supra), and it is such neglect as calls upon the court to exercise its discretion to cancel the notice, for it is unfair to a defendant to leave his property apparently incumbered by a lis pendens, which in fact has lost its efficacy. It is of no consequence that the motion was not made until after service of the summons had actually been made. The defendant could not be expected to move until he knew that a notice had been filed, and there is nothing to show that he knew that any action was contemplated until apprised of the fact by service of the summons and complaint upon him.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, LAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.