Moeller v. Wolkenberg , 73 N.Y.S. 890 ( 1902 )

O’BRIElN", J.

The plaintiff has filed a notice of lis pendens against the defendant’s property, which the latter has moved to vacate on the ground that the action is not one in which such a notice may be filed. The parties are owners of adjoining houses and lots, which are separated by a party wall standing between the lots. The defendant, according to the plaintiff, has failed to provide proper support for his (plaintiff’s) land and building in erecting upon her premises a new six-story and basement building, which is partly completed, and has used and is using for the easterly wall thereof the party wall between the lots; has increased its height, imposed additional weight upon it, and has unlawfully encroached upon the plaintiff’s property by building a large portion of such new structure upon his land; and the result has been to irreparably weaken and injure the party wall, and cause the plaintiff’s house, walls, and foundations to settle, crack, and become weakened, and the house itself to become dangerous and untenantable. For a second cause of action plaintiff alleges that the defendant, in constructing her building, caused large quantities of water, drainage, and sewerage to run and flow upon the premises of the plaintiff, to his great damage. The judgment demanded is an injunction to prevent the increase in the party wall and the encroachments upon plaintiff’s land, to compel the removal of the additions to the party wall and the restoration of the same to its original condition, and to enjoin the flow of water, drainage, and sewerage upon plaintiff’s premises.

Section 1670 of the Code of Civil Procedure provides: “In an action brought to recover a judgment affecting the title to or the possession, use, or enjoyment of real property the plaintiff may * * * file * * * a notice of the pendency of the action.” Where, therefore, it is provided by this section that a plaintiff has the right to file a lis pendens, such right is absolute, and the court .has no power to . cancel the same after it has been filed. Mills v. Bliss, 55 N. Y. 139. Hence the question for our determination is whether the action here is one “to recover a judgment affecting the title to or the possession, use, or enjoyment of real property.” The appellant insists that the action set forth is one for trespass upon the plaintiff’s land which in no way affects the defendant’s lot, and therefore this is not a case in which the notice of lis pendens may be filed. We do not agree with this contention, because, as we view the action, it is intended to restrict the use which the defendant has made and is making of her property and of the party wall; the plaintiff, who» claims an interest therein, alleging that he has been damaged thereby, and is entitled to have the use and enjoyment of defendant’s land restricted and limited to what they were before she commenced to build the new structure. The Code does not require that the right asserted should be as extensive as the title claimed by the defendant; nor is it, indeed, necessary that the title itself should be directly involved. It is sufficient if the right asserted by the plaintiff is of a character that could affect “the possession, use, or enjoyment” of the property, and the action is one wherein the judgment asked would be binding not only upon the defendant, but upon her successors in title as well. In such an action—which, in substance, is one in rem—the object of the lis pen-dens is to retain the subject-matter within the power of the court until the judgment is entered, since otherwise by successive alienations such judgment or decree would be rendered ineffectual. As the interest, therefore, which the plaintiff asserts in the defendant’s property, is of a nature which would limit the use and prevent the enjoyment thereof in the mariner in which the defendant has used or is attempting to use and enjoy it, the action is within the provisions of section 1670 of the Code of Civil Procedure, and it follows that the court has no power to cancel the lis pendens.

The order accordingly should be affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., and LAUGHLIN, J., concur.