Wagner v. Perry , 58 N.Y. Sup. Ct. 199 ( 1889 )

Van Brunt, P. J.

This action was brought to recover $250 paid by the plaintiff to the defendant on account of the purchase by the former of a house and lot in this city, and $120.31 money paid by plaintiff for examining the title to said premises, with interest. At the time of the commencement of the action a notice of Us pendens was filed in the office of the clerk, etc. The action was tried in July, 1887, and judgment entered in August, 1887, dismissing tlie plaintiff’s complaint. The plaintiff appealed to the general term, vHiere the judgment was affirmed, and judgment of affirmance entered on the 9th March, 1888. 47 Hun, 516. At the time of making this motion, namely, June, 1888, the plaintiff had not appealed to the court of appeals, and had refused to take such appeal; the defendant having requested him so to do in order that he might move to dismiss the same, claiming that the action was not appealable to the court of appeals without leave of the general term. The defendant thereupon moved for an order canceling the notice of Us pendens, which motion was granted, and from the order entered thereon this appeal is taken.

By section 1674 it is provided that if the action was stayed, discontinued, or abandoned, or final judgment rendered against the party filing the notice, and tlie time to appeal has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in tlie action, the court may direct that the notice be canceled. Under the facts above stated, it is clear that the sole object of the plaintiff by his notice of pendency of action was to harass and annoy the defendant, and tie up his property, and that his neglect and refusal to take the appeal, as requested by the defendant’s attorney, was unreasonable, and he therefore brought himself within the provisions of the Code authorizing the court to cancel the notice where a plaintiff unreasonably neglects and refuses to proceed in the action. The order should be affirmed, with costs. All concur. a