are sufficient to move it to annul the effect of a statutory notice, 95 Dismissal having ended the cause, a motion to re-instate without notice to the defendant does not revive the judicial rule of lis pendens. 96 In the case of the statutory notice an order to cancel is required which shall direct the clerk to cancel the notice by a note to that effect on the margin of the record of the notice, referring to the order.97 After the court has directed the cancellation of a lis pendens for a cause enumerated in the statute, a new lis pendens can not be filed, and, if filed, will be cancelled.98 17. Superseding.] Upon the conversion of real property by a judicial sale, or upon any other substitution of a fund deposited in court in lieu of real property thereby discharged, there is no longer any necessity for filing the statutory notice; 99 but a statutory notice duly filed, which bound the real property, will follow the fund and bind that instead. 18. Fraud.]- The constructive notice which strangers have, whether by the judicial doctrine of lis pendens or the statutory notice, never makes a purchase for value a fraud. Therefore if such a transfer to a known person is apprehended, it is well to give him express notice, which is best done by serving a copy of the summons and complaint, with notice of filing and service.1 19. No personal liability.] - Neither the judicial doctrine of 95 Hayes r. Nourse, 114 N. Y. 595 (delay of 46 years held to nullify notice). 96 Davis r. McClelland (Mo. 1887), 8 West. Rep. 225. The court here say: "The dismissal of the suit put the parties out of the court, and the entry of the clerk was sufficient evidence of that fact. The lis pendens created by filing an abstract of the attachment in Jasper county ended with the dismissal of the cause. We do not see how the mere filing of a motion to reinstate with the clerk in vacation, and no notice thereof given to the defendants, could operate as constructive notice to Mr. Clark. The defendants were not in court until they subsequently appeared to the motion." 97 Code Civ. Pro., §§ 1671, 1674. 98 Cohen r. Ratkowsky, 43 App. Div. 196, 59 N. Y. Supp. 344. 99 So held in a mechanic's lien case. Ward v. Kilpatrick, 85 N. Y. 413, 4'8. 1 In Albert r. Back, 52 N. Y. Super. Ct. 550 (aff'd without opinion in 101 N. Y. 656), the service of a summons without the complaint, upon an assignee for benefit of creditors in which the assignor is named as a co-defendant-held. to constitute notice to the assignee of the pendency of an action to set aside the assignment, so as to disentitle him to credit for the amount of a preference under the assignment thereafter paid by him. [Citing Williamson r. Brown, 15 N. Y. 354.] lis pendens nor the statutory notice2 extends further than the purpose of holding the res within the power of the court and actually retaining it against claims of intermediate purchasers or incumbrancers. If the litigant seeks not to retain the res, but to charge an intermediate transferee with personal liability for rents or profits as for instance by a suit for damages for cutting and carrying away timber from the land in litigation - the constructive notice afforded by the general doctrine of lis pendens, or by the statutory notice, is not enough. To make the result of litigation as to the title to property binding upon a stranger for the purpose of rendering him liable in damages for interference with it, actual notice must be shown. FORM No. 522. Notice of pendency of action (statutory notice of lis pendens). [Title of court and cause, naming all the parties.] NOTICE IS HEREBY GIVEN that an action has been commenced and is now pending in this court, upon a complaint of the abovenamed plaintiff against the above-named defendants [in foreclosure, say] for the foreclosure of a mortgage bearing date the day of one thousand nine hundred and executed by [names of mortgagors], of [names of mortgagees], of to [and which has been duly assigned to the above-named plaintiff], to secure [here state the amount of the mortgage], which mortgage was recorded in the office of the clerk [or, register] of the county of at at page day of o'clock in the one thousand nine hundred and on the of Mortgages, [Or, in partition, say, for the purpose of obtaining a partition of the premises therein described, among the owners thereof, or for a sale thereof under the direction of this court, and for a 2 Jacobs r. Smith, 89 Mo. 673, 2 S. W. Rep. 13. In general tax sales purchasers are deemed to take by title paramount. But in Brown v. Goodwin, 1 Abb. N. C. 452 (aff'd in 75 N. Y. 409), it was held that if, pending a creditor's action to reach the equitable interest of a judg ment-debtor in land, lis pendens having been filed, the land is sold for nonpayment of the taxes of the legal owner, but at the sale public notice of the judgment and the pendency of the suit is given in the hearing of all present, the purchaser takes subject to the lien of the judgment obtained in the cred itor's action. 3 Names of parties, date, and place N. Y. Code Civ. Pro., § 1631. and date of record must be stated. division of the proceeds thereof among such owners, according to their respective rights.] [Or, in specific performance of an agreement to sell, say: for specific performance of a certain agreement in writing made between plaintiff and the defendant Y. Z., whereby said Y. Z. agreed to sell and convey to plaintiff the premises herein described for the consideration expressed in said agreement.] [Or, in specific performance of an agreement to give a mortgage, for instance, thus: upon a written contract made by and between said A. B. and Y. Z. [if recorded, may so state as] which contract was recorded in the office of the clerk [or, register] of the county of , in Liber of [Mortgages], at page one thousand nine hundred on the and at day of o'clock in the noon, whereby the said Y. Z., among other things, agreed to give to said A. B. satisfactory security for dollars, borrowed by him from said A. B., in which pending action plaintiff demands judgment, that said Y. Z. specifically perform the said agreement, and execute a mortgage upon the following described real estate and property, for the repayment of said sum of dollars, with in terest by instalments, as specified in said contract.*] [Or, in action to clear title and cancel deeds, for instance, thus:] And that the object of such action is that the said Y. Z., and all persons holding or claiming to hold by or under him, may be forever barred from all claim to any estate of inheritance or otherwise in the premises hereafter described; that the title to said premises be adjudged to be in the said A. B. [as receiver of, etc.]; that the said Y. Z. surrender possession thereof to the plaintiff; that the cloud upon plaintiff's title thereto may be removed, and that said Y. Z. execute and deliver to the plaintiff a release of all claim, right or interest of, in or to said premises, and that various deeds mentioned in the complaint filed herewith by the provisions of which the said Y. Z. claims to hold title to said premises be cancelled and set aside, and that a note of such cancellation be made upon the record of such deeds in the office of the Register of the county of [Or, in an action to establish a charge or lien, etc.] for the purpose of having it adjudged that the plaintiff do recover of the defendants the sum of dollars, with interest thereon from 19, besides the costs of this action. the day of Under such a notice as this of a demand for the execution of a mort gage, it was held that a judgment for sale could not be sustained against subsequent purchasers having no other notice than the notice of lis pendens. and that the hereinafter described real estate of the said defendant Y. Z. be charged with the payment thereof, and that the same is a lien thereon, for the payment of which said property should be sold by the judgment of the court in this action. [In every case after such statement proceed thus:] And that the [mortgaged] premises in the county of affected by [or, the premises in said county of of which partition or sale is sought or, wherein dower is claimed-in] the said action, are at the time of the commencement of this action, and at the time of the filing of this notice, situate in the town of ward of the city of [or, the 1, in said County in the State of New York, and are described in the said mortgage] as follows, to wit: [description as in a well-drawn deed.5 [Date.] [Signature and office address of], Plaintiff's attorney. [File, with verified complaint, with the county clerk of each county where any of the property is located.] [Within sixty days after filing, the service of the summons on some defendant must be made, or publication thereof begun."] [Direction for indexing, as in next Form.] FORM No. 523. Direction to index notice of pendency.8 To the county clerk of county: You will please index the above notice to the name of each of the following defendants: I. That he is the attorney for the above named defendant Y. Z., who is the owner of the premises described in the complaint [or otherwise show his conection with the premises]. 5 See paragraph 8, supra, page 886. 6 Section 1670, as amended in 1904, requires the complaint to be verified. 7 N. Y. Code Civ. Pro., § 1670; see paragraph 14, page 889, supra; Lipschitz v. Watson. 113 App. Div. 408. 8 See paragraphs 6 and 11, supra, pages 884 and 888. II. That this action was brought [state object, as] to compel specific performance by the defendant Y. Z. of a certain alleged agreement for the sale to the plaintiff of said premises. III. That issue was joined in this action in the day of day of 19 , by the service of the defendant's answer; that thereafter, and on the 19, this action was duly tried before Mr. Justice J. K., holding special term of this court [at Part VI thereof], and that thereafter said justice duly made and filed his decision wherein he directed judgment in favor of this defendant dismissing plaintiff's complaint [upon the merits.] day of 19 . IV. That thereafter and on the judgment was duly entered in this action in the office of the clerk of the county of in favor of the defendant, dismissing the plaintiff's complaint [upon the merits]; that on the 19, a copy of said judgment and notice of its entry were duly served upon the plaintiff's attorney, as appears by the annexed affidavit of M. N. day of V. That more than thirty days have elapsed since such service of said copy of judgment and notice of entry, and that plaintiff's attorney has served no notice of appeal therefrom, and that his time so to do has fully expired.9 day of VI. That at the time of the commencement of this action, and on or about the , 19, plaintiff filed in the office of the clerk of this county a notice of the pendency of this action, which was indexed against the name of this defendant, and contains a description of the premises as also described in the complaint herein. The deponent desires that such notice shall be cancelled according to law. [Jurat.] [Signature.] FORM No. 525. Order cancelling notice of pendency.10 At a Special Term [etc., as in Form No. 94, page 255.] [Title of action.] On reading and filing the notice of motion, dated the day of 19, to cancel the notice of pendency of action 9 The defendant has a right to the cancellation of the notice under such circumstances. Jarvis r. Am. Forcite Powder Co., 93 App. Div. 234, 87 N. Y. Supp. 742. 10 The motion may be made by any person aggrieved. N. Y. Code Civ. Pro.. $ 1674; S. P., independent of statute, page 73, supra. |