Opinion
November 9, 1925.
Horace London, for the plaintiff.
Pfeiffer Crames, for the defendant Sol Rosen.
The plaintiff sues claiming a partnership with the defendant for the purpose of dealing in real estate. His essential prayer for relief is that the partnership be dissolved, its assets consisting of real estate be sold, its debts be paid and the net proceeds divided in accordance with the alleged partnership agreement. These prayers for relief are appropriate to the allegations of the complaint, which claim partnership. Plaintiff adds, however, a prayer for judgment declaring the interest of the plaintiff in the specific partnership properties to be certain amounts and he has filed a notice of pendency of action against all the properties. Defendant moves to vacate this lis pendens, offering to give a surety company bond in any reasonable amount to be fixed by the court. The fact of partnership is denied and the affidavits abound with allegation and counter-allegation as to a fraud claimed to have been perpetrated on the defendant by the plaintiff, his son.
The ultimate determination of the validity of these charges cannot be made on this motion, but must be had on trial. In the meantime one parcel of the real estate is under contract of sale made before this lis pendens was filed, a mortgage is about to become due on another parcel and the renewal of it is made substantially impossible by the existence of the lis pendens. Thus defendant is threatened with most serious consequences unless he is relieved of this lis pendens.
The plaintiff's position is that the court has no power to cancel the lis pendens because the action is one to declare a specific interest in real estate. The Civil Practice Act (§ 124) provides that the court may in its discretion cancel a lis pendens in an action other than an action to foreclose a mortgage, or for the partition of real property, or for dower. The authorities have somewhat further limited this discretion by holding that it should not be exercised where the plaintiff's cause of action is not for money, but for specific performance, or to have a specific ownership in real property decreed. ( Weingarten v. Minskoff, 204 A.D. 750; Wolinsky v. Okun, 111 id. 536; Tishman v. Acritelli, Id. 237; Lindheim Co. v. Central Nat. Realty Construction Co., Id. 275.) This, however, is not such a case. A partnership to deal in real estate may be created as for any other purpose and either partner has the legal right to sell the firm real estate. The Partnership Law of 1919 (§ 51) provides that specific partnership property is held by each of the partners as a "tenant in partnership" and (§ 52) that a partner's interest in the partnership "is his share of the profits and surplus and the same is personal property." (7 Uniform Laws Ann. pp. 31-33, 40, 41.) Even before the Partnership Law a partner could maintain partition only after the payment of firm debts. ( MacFarlane v. MacFarlane, 82 Hun, 238; Eisner v. Eisner, 5 A.D. 117; Chester v. Dickerson, 54 N.Y. 1, 10.)
Thus this action is not one for partition or for the declaration of a specific ownership in real property. It could not be because the alleged existence of the partnership negatives such a claim. The practical consequences of any other holding would be most serious. A partnership to deal in real estate can be created by parol and on such an allegation any man could sue another and tie up real estate to untold amounts by the filing of a lis pendens, with no possibility of relief if the right to cancel the lis pendens by bond were denied to the defendant. I believe that no lis pendens can be filed in an action for a partnership accounting because it is not an action to recover a judgment affecting title to, possession, use or enjoyment of real property. (Civ. Prac. Act, § 120.) It is an action to recover the partnership interest, which is defined in the Partnership Law as personal property.
Holding, therefore, as I do, that the filing of the lis pendens is unauthorized by the statute, I am of the opinion that defendant's offer to file an undertaking to secure plaintiff as a condition of canceling this lis pendens is most fair and liberal and the motion is granted upon the condition indicated.
Settle order on two days' notice, submitting with the order suggestion as to the amount which should be fixed in the undertaking. If the defendant so elects, he may have the order provide that the lis pendens is canceled only as to the two pieces of property with respect to which there is pressing necessity, upon his giving an undertaking in an appropriate amount with respect to these two parcels.