Opinion
November 22, 1907.
Herman S. Bachrach, for the appellant.
William S. Haskell, for the respondent.
On the contract day the plaintiff refused to take title on the grounds (1) that there was an existing violation of the tenement house act in respect of the property, which was a tenement house, viz., in that the water closets were in the yard instead of in the house, as required by the said act, and (2) that in an action entitled the Tenement House Department of the City of New York against Harris Horowitz and Samuel Nelson a lis pendens had been filed against the property on June 4th, 1904. No complaint in such action has ever been filed or served, and the defendants therein did not own the land at the time of such filing, having conveyed the same on May 16th, 1904, to the defendant; and the deed was recorded next day. The lis pendens says the action is "for the enforcement of sections 100, 102, 103, 109, 99, 126 of the Tenement House Act, and the removal of violations of the same;" and to recover against the said defendants "the penalty incurred by such violations and the costs of this action or proceeding". These sections prescribe how sinks shall be constructed, for the removal of privy vaults, for the whitewashing of cellar walls, the repair of roofs and for receptacles for ashes and garbage.
That the water closets were in the yard instead of the house, or that there were other defects or lack of improvements or repairs, was no defect of title. The contract was to purchase the house just as it was, and it did not matter how defective or tumble down it might be.
The lis pendens was no encumbrance. It is given only the "same force and effect as the notice of pendency of action provided for in the Code of Civil Procedure" (Tenement House Act, § 130), and it has none unless the complaint be filed with it as the Code requires (§ 1670; Weeks v. Tomes, 16 Hun, 349; Albro v. Blume, 5 App. Div. 309). And no lien could be got on the land under it in the suit in which it was filed, for the defendants therein did not own the land when the suit was brought.
The plaintiff not only refused to take title for no reason, but neglected to bring this suit for nearly two years and a half, during which time the defendant spent $4,000 in improving his house. The plaintiff is entitled to no relief.
The judgment should be reversed on both the law and the facts.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment reversed on the law and the facts, and new trial granted, costs to abide the final award of costs.