Opinion
January 15, 1908.
Henry E. Miller, for the appellant.
A.J. Dillingham, for the respondents.
Defendant was entitled to an order canceling the notice of pendency of action if the time of the appellant had expired for appealing from the judgment of nonsuit. (Code Civ. Proc. § 1674.) The notice served for the purpose of limiting the time for appeal purported to have attached to it a copy of the judgment which was not signed by the clerk. Mason v. Corbin ( 29 App. Div. 602) and Good v. Daland ( 119 N.Y. 153) show that such notice was not effectual to limit the time in which to appeal. The court should not cancel the notice of pendency in a case like this until after final judgment, and unti-the plaintiff's right to appeal from the judgment has expired. The order appealed from should, therefore, be reversed, with ten dollars costs, and the motion to cancel the lis pendens denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and the motion to cancel lis pendens denied, with ten dollars costs.