Summary
In Nosrep Corporation v. Clinton Securities Corporation (193 A.D. 878, 879) the court said: "The practice of the plaintiff was proper, and as a rule the plaintiff was entitled as, of course, to the order of discontinuance without costs.
Summary of this case from Weber v. WardOpinion
November 23, 1920.
M.M. Leichter, for the appellant.
James E. Smyth, for the respondent.
The appeal is from an order of the Special Term that vacates an order for discontinuance and for cancellation of a lis pendens without costs, obtained by the plaintiff upon an ex parte application. On April 21, 1920, plaintiff filed summons, complaint and lis pendens in an action for specific performance. The summons and complaint were never served upon the sole corporation named as defendant. Defendant served an answer which was duly returned forthwith. On May 10, 1920, plaintiff obtained the said order upon an affidavit that showed no service of the summons and complaint, an intention to abandon the remedy for specific performance and to seek relief by action for recovery of the deposit paid on the contract. The affidavit also showed the reception and return of the answer. Thereupon the defendant moved on notice at Special Term presided over by another justice, for vacation of the order. The court after a hearing granted the motion.
The practice of the plaintiff was proper, and as a rule the plaintiff was entitled as, of course, to the order of discontinuance without costs. ( Trow Printing, etc., Co. v. New York Book-Binding Co., 16 Civ. Proc. Rep. 122, and cases cited; Milliman's Law of Costs, 78, 79.) That is, the court had no basis for the exercise of discretion to deny the order, unless substantial rights had accrued and injustice had been done. ( Matter of Butler, 101 N.Y. 307.) Of course, the Special Term could open the ex parte order ( Carleton v. Darcy, 75 N.Y. 375), and the question before it was whether the order had impaired substantial rights or had worked injustice. The contention of the defendant seems to rest upon its interposed answer, and the filing of the lis pendens. The interposition of the answer at most presented a question of terms. But the mere filing of the summons, complaint and lis pendens did not constitute an action pending against the defendant. ( Warner v. Warner, 6 Misc. Rep. 249; Hart v. Hart, 86 App. Div. 236; Doerfler v. Pottberg, 170 id. 578; appeal dismissed, 218 N.Y. 27. ) The defendant contends that it had the right to serve an answer on the authority of Fox v. Brooks ( 7 Misc. Rep. 426). But Fox named two defendants, of whom one was served with the summons and complaint, and the court points out that the action was on a joint liability and the notice of appearance was served and accepted for both defendants. So in the case cited as authority by the court in Fox v. Brooks ( supra), namely, Higgins v. Rockwell (2 Duer, 652), Higgins sued Rockwell and Freeman, against whom personally judgment was prayed, and Rockwell only was not served with the summons, but both defendants appeared and united in an answer. In the case at bar there is but one defendant.
It remains to consider the filing of the lis pendens. The defendant does not specify any particular injury therefrom. I will concede the normal effect thereof was to destroy the ability of the defendant to sell, mortgage, and to some extent lease his property, as was said in a case not cited by counsel. ( Duer v. Fox, 27 Misc. Rep. 676.) In Duer v. Fox ( supra) the Special Term compelled the plaintiff to accept an answer, although no summons had been served, on the ground that a defendant may voluntarily appear for the purpose of protecting himself and his interests, and cites as an instance for like practice the issue of a writ of replevin and a taking thereunder. But the decision rests upon the proposition that the defendant was entitled to as speedy a trial as was possible, and to that end the defendant was entitled to make prompt appearance and serve an answer. The reason of that case does not exist in the case at bar, for the plaintiff here had sought and obtained an order that discontinued the action and lifted the lis pendens. What more could a trial effect — and at a later period?
It cannot be said that the defendant must answer to lift the lis pendens, for the Code of Civil Procedure (§§ 1670, 1674) afforded a remedy.
We think that the order must be reversed, but without costs, and the motion denied, without costs.
MILLS, RICH, PUTNAM and KELLY, JJ., concur.
Order reversed, without costs, and motion denied, without costs.