Opinion
October 19, 1906.
Herman Kahn of counsel [ Paul Gross, attorney], for the appellant.
Henry L. Bogert, for the respondents.
Present — O'BRIEN, P.J., INGRAHAM, CLARKE and HOUGHTON, JJ.
This is an appeal from an order of Special Term canceling a lis pendens upon giving security. The judgment demanded by the complaint was that the defendant Simon P. Flannery be decreed to specifically perform a contract for the conveyance of real estate in the city of New York, and that in the alternative the plaintiff be decreed or adjudged to have a lien for the amount deposited upon the execution of the contract.
It has been determined in this department that the right of the plaintiff to retain the notice of pendency of action in an action for a decree for specific performance of the contract for a conveyance of real property must be determined upon the allegations of the complaint, or facts clearly established, and that upon such a motion as in the case at bar we are not authorized to look into the facts as upon a trial, nor to search the complaint as upon a demurrer. ( Tishman v. Acritelli, 111 App. Div. 237; Lindheim Co. v. Central Nat. Realty Construction Co., Id. 275; Wolinsky v. Okun, Id. 536; McCrum v. Lex Realty Co., 113 id. 58.)
Upon those authorities the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.