Metz v. Forest Hills Homes, Inc.

Hallinan, J.

Motion by defendant for an order canceling a notice of pendency on the ground that the action is not one in which such a notice may be filed.

On July 19, 1948, plaintiff entered into an agreement with defendant to buy certain real property upon which defendant was to construct a building in accordance with certain plans. According to the complaint the building was not so constructed and defendant’s representations that the property was fit for the purposes described in the agreement were false and fraudulent. The complaint contains two causes of action, the first for rescission and the second for damages.

A vendee of land under an executory contract for the purchase thereof has a lien on the land for the amount paid pursuant to the contract. (Elterman v. Hyman, 192 N. Y. 113.) Defendant claims, however, that such a lien is lost when the plaintiff rescinds the contract. In support of this proposition it cites Davis v. Rosenzweig Realty Co. (192 N. Y. 128). Plaintiff points out that this case was later questioned by the Court of Appeals in Interboro Operating Corp. v. Commonwealth S. & M. Corp. (269 N. Y. 56, 59) where the right to file a lis pendens in a suit by a purchaser to foreclose his vendee’s lien was specifically upheld, as it was, also, in Farbro Corp. v. A. F. A. Realty Corp. (261 N. Y. 24). In both of these cases, however, the action was brought to foreclose a vendee’s lien on real property. In the instant case plaintiff has sought no such relief. He merely asks that the agreement be rescinded; that defendant repay to the plaintiff the money received, and an additional sum for damages. Under these circumstances the action is not one affecting the title to or possession of real property and does not justify the filing of a lis pendens. The motion is accordingly granted. Submit order.