Bachmann v. Wagner

¶1“In an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of, real property, the plaintiff may, when he files his complaint or at any time afterwards before final judgment, file in the clerk’s office of the county where the property is situated a notice of the pendency of the action;” 1 and where such notice of Us pendens is filed in such an action the court has no power to entertain a motion to cancel same. Mills v. Bliss, 55 N. Y. 139. The only question, then, to be considered is whether the judgment sought to be recovered in this action would affect the title to, or the possession, use, or enjoyment of, real property. The action is brought manifestly to impress a lien upon real estate, and to have that lien foreclosed, and the real estate sold to satisfy the same. Such an action clearly affects the title to, or the possession, use, or enjoyment of, real estate. Under the guise of a demurrer to a complaint in such an action, a motion cannot be entertained to cancel a Us pendens. The right of the plaintiff to recover must be determined in a different manner. The order should be affirmed, with ©10 costs and disbursements.