#### Herman Weissberger and Edward Spiegel, *Respondents, v.*Karl M. Wallach, Appellant.

First Department,

February 7, 1908,

Real property — vendor and purchaser'—when lis pendens not' incum, brance — sale by ■ vendor after ■ title rejected — defenses available to vendor sued for specific performance.

A vendee of lands who has contracted to take title subject to a mortgage is not justified in rejecting the title tendered as unmarketable by reason of the filing Of' a *Us pendens*in ah action to foreclose'that mortgage, if the complaint in the ■ action was not. filed and the mortgagee had consented to discontintie the.actión ' and extend the time of payment so that the .mortgage, became .duo as, provided in the contract, and the vendor holding a consent to the cancellation of the *Us pendens*merely asked a short adjournment so that he could enter a formal order to'that effect.. . ' - . ' ■

When'the vendee refuses-to take title splely on. the ground aforesaid, the vendor is.-justified in selling the property, and although he'has given a bond to pay any judgment recovered against him, is entitled to make the defense that the rejection of the title was not justified. , . .......

Appeal by the defendant, Karl M. Wallacli, from a'judgment of the Supreme, Court in favor of the plaintiffs,"-entered in the "office of the clerk of - the county of New York ón the "Sd-dfty of May, 19 0Y, upon the decision of the -court" rendered after a trial -at: the New York. Special Term.

*Siamslam Jf, Tuchman,*for the. appellant. • . .. ■ . .

*Charles Sehwiek,*for the respondents.

. IñgrÁham, j.:

Thé.action was for-the specific: performance oka Contract for the sale of real estate, the conveyance. to be delivered on the 8d of Hovember, 1905, at one o’clock p. m. Upon that day the- defend^ .ant tendered to the plaintiffs a deed of the property which-the plaintiffs refuse^ to accept upon the ground that the defendant’s title was not marketable’. The only objection to the title which the court sustained was that there was on file a notice of the pendency of an action in the Supreme. Court in which Jacob Scholle and others were the plaintiffs and. John J. McAdam and others were *383defendants which related to the property which defendant had agreed to convey, filed on the 10th of January, 1896. This notice of pendency of an action was introduced in evidence and recited that an action had been commenced to foreclose a mortgage, dated tlie 4th of May, 1886, which was a lien upon the property in question, Under the contract sought to be enforced the property was to be taken subject' to this mortgage which was described in the notice of pendency of action. Ho complaint in the action in which the notice was filed was introduced. There were, however, introduced by defendant the agreements between the plaintiffs in the foreclosure action in which the notice of pendency of the action had been filed and the defendants, extending the payment of the mortgage mentioned from time to time, so that it became due on May 1,1906, as provided for in the contract. The defendant stated at the time of closing the- contract that he had a consent to cancel that *lis pendens*and asked for a short adjournment to enter the formal order, which was refused, the plaintiffs saying that in that case they would object to the title on other grounds.

I do not think that this *lis pendens*made the title unmarketable. The evidence is undisputed that a consent to discontinue the action had been delivered to the defendant, but that it had been mislaid and the plaintiffs’ attorney in that foreclosure suit at once gave the attorney for the defendant a duplicate consent upon which an order of discontinuance was entered. There was no litigation concerning this mortgage and no proof that any complaint had ever been filed and the evidence was undisputed that it related to the mortgage that plaintiffs had. agreed to assume. . The *Us pendens,*therefore, was not an incumbrance and the plaintiffs were not entitled to reject the title upon that ground. It is perfectly plain that the title was good. The learned justice at the Special Term relied upon *Simon*v. *Vanderveer (155*N. Y. 377); but that case expressly held that a' *Us pendens*by itself does not constitute an incumbrance, but it must be proved by the complaint that a good cause of action existed. (See, also, *Baecht*v. *Hevesy,*115 App. Div. 509; *Grace*v. *Bowden,*10 id. 541.) The only question is whether or not the subsequent act of the defendant in giving a bond to pay any judgment recovered in this action and then subsequently conveying the property prevented him from claiming the advantage of this rule. It is quite *384clear that-on this evidence the *Us pendens*itself was not an incumbrance and the plaintiffs failed to prove any cither objection to the title. The plaintiffs never offered to accept title and .based this action upon the allegation that defendant -was unable to perform the contract. Having taken this position at the time the' contract was to be performed and based this action upon it, I do not think the defendant was bound to hold the property so as to allow the plaintiffs to change their mind and accept a conveyance but was justified in disposing of the property and defending the action to recover the amount paid by plaintiffs on the execution of the contract.

■ The judgment should be reversed and. a new trial ordered, with costs to the appellant to abide the event.

Patterson, P'. J., Clarke, Houghton, and Scott, JJ., concurred.

Judgment i-eversed, new trial ordered, costs to appellant .to abide, event.