Smadbeck v. Law

Citations

• 106 A.D. 552
• 94 N.Y.S. 797
• 1905 N.Y. App. Div. LEXIS 2625

Syllabus

<p>Lis pendens — motion to camel it — denied if there be any doubt as to the plaintiff’s right — action to enforce a contract vendee’s lien for money paid for real property, . the title to which proved to be-defective — right to file a notice of lis pendens therein.</p> <p>If there he any doubt as to the right of a plaintiff in an action to file a' Us pendens therein, the question should not be: decided on. a motion to cancel ouch lis pendens.</p> <p>The vendees in a contract for the .sale of real estate brought an action against the vendor alleging that the title to the property was defective and seeking to recover a payment which they had made on account of the purchase price and also the expenses incurred in the examination of the title. They alleged that they had no adequate remedy at law and they asked that they be declared to have a vendee’s lien upon the premises and that the premises he sold to satisfy such lien. It-was not alleged that the vendees had been let into the possession of the premises.</p> <p>Held, that a notice of lis pendens filed by the plaintiffs should not he vacated on motion, as it could not he said that the action was not brought to recover &. judgment affecting the title to or the possession, use or enjoyment of the premises, or that it was clear that the plaintiffs would not be able, upon the trial, to establish a lien as vendees.</p>