Opinion
July, 1905.
Edwin L. Kalish, for the appellants.
Charles De Hart Brower, for the respondent.
This is an action by the vendee under a contract for the sale of real estate to recover a payment made pursuant to the contract on account of the purchase price of the premises, and the expenses incurred in the examination of the title. The complaint proceeds upon the theory that the title was defective, and does not pray for specific performance. The plaintiffs allege that they have no adequate remedy at law, and pray judgment that they be decreed to have a vendee's lien upon the premises, and for a sale thereof to satisfy the lien. There is no allegation that the vendees were let into possession of the premises. The order canceling notice of pendency was granted upon the authority of Klim v. Sachs ( 102 App. Div. 44), wherein it was held that the vendee, not having taken possession, did not acquire a lien upon the premises for the amount of the down payment. If there be any doubt as to the right to file the notice the merits should not be decided on a motion to cancel it. It cannot be said that the action is not brought to recover a judgment affecting the title to or the possession, use or enjoyment of the premises against which the notice of pendency is filed (Code Civ. Proc. § 1670); nor is it clear that the plaintiffs may not be able upon the trial to establish a lien as vendees. (See 3 Pom. Eq. Juris. § 1263; also Chase v. Peck, 21 N.Y. 585.)
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
O'BRIEN, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.