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In foreclosure, the date of the mortgage, the names of the parties thereto, and the time and place of record should be stated.
9. Time of filing.] - The plaintiff must file his notice when he files his verified complaint, or thereafter, and before final judgment. A defendant files his notice at the time of filing his answer, or thereafter before judgment.
Filing the notice before filing the pleading which states the claim is futile,65 but no irregularity results, if no intervening claims arise prior to judgment, and it has been held that tho filing of the pleading at a time subsequent to the notice gives the notice a valid inception from that time.67 The pleading must be verified. 88
An order that the complaint be filed nunc pro tunc, as of the time of filing the notice, cannot cut off rights acquired by an intermediate purchaser or incumbrancer who was not a party with opportunity to be heard when the order was made. 69
If the notice is before service of summons, personal service of the summons must be made upon a defendant within sixty days after the filing, or else within the same limit publication must be commenced, or service without the State made, pursuant to order therefor. 70
To give effect to the judicial rule of lis pendens in a case not within the statute, the complaint must be served," unless the process is such as to put the defendant on inquiry. 12
timber, it was intimated, would not have been protected against, because the timber was not mentioned in the bill, but the case was really decided on another point. It can hardly be maintained that a person chargeable by lis pendens as to land could escape being bound as to fixtures, parcel of the realty, etc., because they were not specifically mentioned.
62 Required by N. Y. Code Civ. Pro., § 1631.
65 Albro v. Blume, 5 App. Div. 309, 39 N. Y. Supp. 215; Burroughs v. Reiger, 3 Abb. Pr. 393, note; 12 How. Pr. 171; President, etc., Del. & H. Co. v. Harris, 15 Wkly. Dig. 36.
66 Brenen 1. North, 7 App. Div. 79, 39 N. Y. Supp. 975, 25 Civ. Pro. 399.
67 Benson r. Savre, 7 Abb. Pr. 472, note; Tate v. Jordan, 3 id. 392; Flood v. Isaac, 34 Wis. 423; S. P., Olson v. Paul, 56 id. 30.
GS N. Y. Code Civ. Pro., § 1670, as amended 1904.
70 N. Y. Code Civ. Pro., § 1670. Substituted service within the State within the sixty days held to be a compliance with the statute. Ferris v. Plummer, 46 Hun, 515, 13 Civ. Pro. 389.
71 President D. & H. Canal Co. v. Harris, 15 Wkly. Dig. 36. 72 Albert v. Peck, 52 N. Y. Super. Ct. 550.
10. Place of filing.] — The notice must be filed in the clerk's office of each county in which is situated any real estate effected.“ If property in several counties is affected, the better practice is, on filing the original complaint in the county chosen for the place of trial, with a notice describing the property in that county, to take a certified copy of the verified complaint (or, if preferred for speed, to verify the complaint in duplicate), and file the certified copy (or duplicate) in the county where the other real estate is situated, with a notice describing the property in that county.74
11. Omission to index.] — Upon principles well settled under the recording acts," it is the filing, with a proper request to index, that constitutes the constructive notice under the New York statute; 76 but it is safer for the practitioner to see that the notice is correctly indexed."
The direction to index should include the name of every defendant capable of transferring or creating a lien upon the property, or any part of it.78
12. Amending.] — If, after filing, new defendants are added, or other property is claimed in the suit, an amended notice should be filed.79
An amended notice filed without leave, with or after the filing of an authorized amended summons and complaint, is valid. If amendment is desired independent of an amendment of the
73 There are specific statutory provisions in some States as to filing a notice, judgment, etc., to affect real estate situated in counties other than the one in which suit is brought. See, for instance, N. Y. Code Civ. Pro., $ 1670.
74 In an action against a railroad company whose road extends through several counties, a notice of lis pendens filed in each county would be inoperative without the filing of a complaint also in each county. Cornell 0. Utica, I. & C. Ry. Co., 61 How. Pr. 184.
75 Mutual Life Ins. Co. r. Dake, 1 Abb. N. C. 381, and note in 14 Abb. N. C. 453, and 17 id. 123.
76 N. Y. Code Civ. Pro., 88 1670, 1071; Hartwell v. Riley, 47 App. Div. 154, 62 N. Y. Supp. 317.
77 In Patterson r. Brown, 32 N. Y. 81, an omission to file in the right place and index in the right book was held fatal by the court of tirst instance; but the judgment was reversed by the Court of Appeals without passing on the point, because the purchaser had actual notice.
78 The notice filed is constructive notice to a purchaser or incumbraneer of the property from a defendant with respect to whom the notice is directed to be indexed. Code Civ. Pro., 8 1671.
19 Clark 1. Havens, Clarke, 561. And such is said to be the safer practice where parties are stricken out. Curtis v. Hitchcock, 10 Paige, 399.
80 Daly v. Burchell, 13 Abb. Pr. (N, S.) 764.
complaint, leave may be asked by motion on notice to the intermediate purchaser or incumbrancer,81 if any. A fair construction of the statute allows an amended notice to be filed of course, to supply any defect in the original; but an amended notice so filed cannot have relation back.
13. Filing nunc pro tunc.] — Filing the notice of lis pendens nunc pro tunc, or the complaint which ought to have been filed with it, cannot operate to cut off the rights of intermediate purchasers or incumbrancers, 82 but if the proof of filing is defective the court may allow that to be amended so as to show due filing: 83
If a third person purchase or acquire a right or lien from a party pendente lite before notice of lis pendens was operative, he may be brought in as a party, and the question whether he has acquired a paramount right, tested by moving, that the notice, or complaint, as may be necessary, be filed nunc pro tunc. 84
14. Service of summons, etc.] — If notice is filed before service of summons, follow it up within sixty days by service on some defendant, or by getting an order for publication (see Service by Publication, page 663) and commencing publication, or making service without the State 85
15. Effect of judgment.] — It is often said that judgment terminates lis pendens, but this means only that one who claims under a judgment may rely on the judgment (at least after time to appeal has expired), and is not bound to investigate claims or equities determined by it. But it has been held that if the litigation be continued after judgment, its pendency or the statutory notice thereof is notice to third persons who deal with a party to
81 Vanderheyden v. Gary, 38 How. Pr. 367, granting motion to amend notice of lis pendens in attachment case, to include omitted property; on notice to an intermediate assignee for benefit of creditors; excuse of the mistake being shown.
82 See paragraph 9.
83 White v. Coulter, 1 Hun, 357 (dictum); S. P., pp. 641, 670, and see Article on FILING, p. 53.
84 See Weeks v. Tomes, 16 Hun, 349; aff’d on opinion below, 76 N. Y. 601; and see Vanderheyden v. Gary, 38 How. Pr. 367.
85 The service within the sixty days need not be on the owner of the equity. Fuller 1. Scribner, 76 N. Y. 190. Any defendant may voluntarily appear after complaint and lis pendens filed. Duer v. Fox, 27 Misc. 676, 59 N. Y. Supp. 426.
If service is not so made, or commenced, the defendant is entitled to a cancellation of the notice. Lipschitz v. Watson, 113 App. Div. 408. Unless the failure to make service is due to defendant's avoiding service. Levy t. Kon, 114 App. Div. 795.
the litigation in respect to the subject of the action as truly as if judgment had not been reached. 86
On the other hand, it is held that the party successful in the judgment may rely on it, and that no notice is necessary to charge persons who deal after. judgment with those whose rights are bound by the judgment.
16. C'ancelling.] - If the notice is filed in a case not within the statute, it will be cancelled on motion.88
The filing of a notice of lis pendens under the statute is re garded in New York as a statutory right, and being independent of any leave of court, it has been held that if filed in a case within the statute, the court have no power to cancel it except for a cause for which the statute permits cancellation,89 nor can the merits be considered on the motion to cancel.* This, however, is an exception to the general principle that the court have control over their records, even in respect to papers filed, pursuant to a statute not requiring leave of court, and it should not be extended in cases where the filing is required by the statute to be with the clerk of the court in which the action is pending.
The only causes prior to 1892 allowed by the New York statute were that the action has been “settled, discontinued or abated, or final judgment is rendered therein against the party filing the
86 Weyh r. Boylan, 63 How. Pr. 72, aff'g 62 id. 397. In this case an action for foreclosure of a real property mortgage was brought against B., the owner of the land, and lis pendens filed. B. answered, and the complaint was dismissed at the trial. Pending appeal B. conveyed, and died. The action was revived against B.'s grantee as his administrator. The judgment was attirmed, but subsequently reversed in the Court of Appeals, and a new trial ordered, on which new trial plaintiff recovered. Held, that the proceedings were regular, and B.'s grantee was cut off by the judgment, though he was not made a party individually. Weyh r. Boylan, 62 How. Pr. 397; aff’d, 63 How. PT. 72. So held granting motion to compel purchaser at foreclosure sale to take title. S. P., Parks 4. Murray, 2 N. Y. St. Rep. 135 (holding that pending time to appeal the court could not cancel the notice, even after a decision in favor of defendant on the merits); Willis v. Bellamy, 53 N. Y. Super. Ct. 94.
$7 No notice is necessary after judgment. Sheridan v. Andrews, 49 N. ¥. 478, aff'g 3 Lans. 129. See N. Y. Code Civ. Pro., 88 1323, 1479, 1674.
88 Brex r. Riker, 56 App. Div. 388, 67 N. Y. Supp. 772 (allegations of complaint showing only personal obligation; judgment asked that plaintiff be adjudged to have a lien on specific realty). If, however, there is a doubt in favor of his right to file the notice, it should not be cancelled on motion. Smadbeck r. Law, 106 App. Div. 552, 94 N. Y. Supp. 197.
89 Mills r. Bliss, 55 N. Y. 139: Niebuhr 1. Schreyer, 10 Civ. Pro. Rep. 72; Fitzsimons r. Drought, 15 App. Div. 413, 44 N. Y. Supp. 453; Beaman e. Todd, 124 X Y. 114; Madden r. Lennon, 23 Misc. 79, 50 N. Y. Supp. 690.
30 Lindheim r. Central, etc., Const. Co., 111 App. Div. 275, 97 N, Y. Supp. 619; McCrum v. Lex Realty Co., 113 App. Div. 58.
notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action.” In 1892, § 1674 was amended so as to permit the deposit of money or filing of an undertaking, in a judgment creditor's action, upon which deposit or filing the lis pendens might be ordered cancelled. In 1905, by an amendment to $ 1671, the court is given power to cancel the lis pendens in any action, other than foreclosure, partition or dower, after a finding that the plaintiff may be adequately relieved and the judgment sought amply secured, by a deposit of money or giving of an undertaking in a specified sum, and upon any defendant making such deposit or furnishing such undertaking. 91
Not until the action has been terminated so that malicious prosecution will lie for bringing it, can an action be brought for damages caused by the malicious filing of lis pendens,92 unless the filing was itself irregular and wholly unauthorized by the statute.
If a suit is unconscionably delayed,93 or is abandoned, 94 the court will equitably refuse to apply the judicial rule of lis pendens, at least against a bona fide purchaser; and the same laches
91 An action for specific performance, where it appears from the complaint that the defendant cannot specifically perform and that plaintiff's recovery must necessarily be a money judgment only, presents a proper case within the amendment for cancelling the lis. Bresel v. Browning, 109 App. Div. 588, 96 N. Y. Supp. 402. But where the complaint, or clearly established facts, in such an action show a right to the specific performance, the notice will not be canceled. McCrum v. Lex Realty Co., 113 App. Div. 58; Tishman v. Acritelli, 111 App. Div. 237, 97 N. Y. Supp. 668. Nor in any case, except where it is apparent that the only relief plaintiff will be entitled to will be a judg. ment for a sum of money, which will be a lien upon the land. Wolinsky v. Okun, 111 App. Div. 536, 97 N. Y. Supp. 543.
92 Smith v. Smith, 26 Hun, 573, modifying on re-argument, 20 id. 555, aff’d, 56 How. Pr. 316.
93 Myrick v. Selden, 36 Barb. 15 (in this case eight years).
Mann v. Roberts, 11 Lea (Tenn.), 57 (in this case three years, the case being thereafter prosecuted to a conclusion). The court say: To have the benefit of it
there should be a close and continuous prosecution of the suit from its commencement to its close, taking into consideration the character of the case, the obstacles thrown in the way by the opposing litigant, and the usual law's delay. [Hayden v. Bucklin, 9 Paige, 512.] The lien will not perhaps be impaired by ordinary negligence, and will only be lost by unusual and unreasonable delay. The delay may be explained, but if not explained, the question becomes one of culpable laches to the injury of an innocent third person. And what constitutes unreasonable want of diligence or undue delay must be determined by the particular circumstances of each case.”
94 Hammond v. Paxton, 58 Mich. 393 (in this case plaintiff brought a fresh suit in lieu of the old one).
Durand v. Lord, 115 III. 610 (in this case plaintiff delayed, and made representations justifying belief that the suit was abandoned).