Wessel v. Sakmann

Woodward, J.:

There appears to be nó doubt that the learned court was acting within its discretionary powers in granting the defendant Hoffman’s motion to cancel a lis pend&ns on terms, but it is urged on this appeal that the defendant Sakmann. had previously .made a similar motion, which was denied, and that this'became res adjudicata upon the point, and that no permission having been granted to renew that motion, the defendant Hoffman is precluded from asking for the same relief. If the interests of the defendants were identical, and both parties were before the court on the motion^ it might be that this contention would be sound. But it appears from the moving papers that the interests of Hoffman and Sakmann are not identical; that Hoffman is a partner of the plaintiff, while Sakmann is a creditor of the firm, and that Hoffman did1 not appear on the motion of Sakmann, either in person or by counsel, and that he took no part in the motion.* Moreover, the motion made by the defendant Sakmann was not upon terms, but was made upon the pleadings and the affidavits in that motion, while the present motion is based upon the defendant’s offer to provide security as provided in section 1671 of the Code of Civil Procedure. The section cited provides that“*any defendant or any other person having .an interest in the .property affected by the action may apply for the cancellation of such notice.” Surely the fact that one defendant has asked for relief upon the pleadings does' not prevent another defendant from making a motion under the. provisions of this section. The right is one belonging to “ any defendant or any other person having an interest,” and it is not lost to one defendant or to a person having an interest because it has been denied to another.

We think the facts shown in the moving papers do not warrant the conclusion that the undertaking for $3,500 is.inadequate. 'The value of the real estate affected is much greater, no doubt, but the interest of the plaintiff cannot, by any reasonable construction of the facts, exceed a few hundred dollars, and it is difficult to avoid the conclusion that the anxiety to retain this notice of the pendency of this action is rather to embarrass the defendants than to bring about .the ends of justice.

• The order appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenes, Gaynor and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.