#### Leander B. Faber, as Receiver in Supplementary Proceedings of Patrick H. Flynn, Appellant, *v.*Harry A. Hanbury and Others, Respondents.

Second Department,

November 14, 1913.

Appeal — lis pendens — when cancellation not authorized under section 1333 of the Code of Civil Procedure.

In order to authorize the cancellation of a *Us pendens*under section 1333 of the Code of Civil Procedure it must appear that the appeal is from a judgment in favor of the owner of real estate, and the judgment must have been rendered in an action to set aside a conveyance of real estate or in an action to compel the specific performance of a contract for the sale thereof.

Hence, on an appeal from a judgment in an action by a receiver appointed in supplementary proceedings brought against a purchaser at a foreclosure sale to charge real property with a lien sufficient to pay judgments represented by the plaintiff the defendant is not entitled to an order canceling the *Us pendens.*

Appeal by the plaintiff, Leander B. Faber, as receiver, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on or about the 12th day of September, 1913, granting defendants’ motion to cancel a *lis pendens.*

*Charles L. Craig,*for the appellant.

*William R. Murphy,*for the respondent Hart.

Rich, J.:

On the 8th day of January, 1913, the defendant Meht purchased at foreclosure sale certain real property in the borough of Brooklyn, the fee of which she then owned. The plaintiff was appointed receiver in supplementary proceedings of the defendant Flynn on January 10, 1913, and obtained an order enjoining the referee from completing the sale, which was subsequently reversed on appeal. *(Hart*v. *Abels Gold Realty Co.,*157 App. Div. 891.) The defendant Meht assigned her bid and purchase to the defendant Hanbury, her former grantor. The plaintiff, on February 19, 1913, commenced this action and filed a *lis pendens*which seems to have had the effect of delaying tire completion of the foreclosure sale. Upon *60the trial of the action the complaint was dismissed upon the merits as to the defendant Hart, and as against the other defendants not on the merits. An appeal has been taken from this judgment, which is now pending, and the defendant Hart moved at Special Term for an order canceling the *lis pendens. ■*The motion was denied, provided the plaintiff file a written undertaking to the effect that if the judgment was affirmed he would pay to Hart the damages he suffered by reason of such appeal and granting the motion in the event of failure to file such undertaking. The present appeal is from this order.

The order was under the provisions of section 1323 of the Code of Civil Procedure, and unless the case comes within the provisions of this section the plaintiff is entitled to have his *lis pendens*remain on file until the final determination of his action. *(Mills*v. *Bliss,*55 N. Y. 139, 141; *Beman*v. *Todd,*124 id. 114; *St. Regis Paper Co.*v. *Santa Clara Lumber Co.,*34 Misc. Rep. 428; 62 App. Div. 538.) Two facts must exist before the cancellation of a *lis pendens*is authorized under the section referred to, which are not in the case at bar. It must be made to appear that the appeal is from a judgment in favor of the owner of real estate, and the judgment must have been rendered in an action to set aside a conveyance of such real estate or in an action to compel the specific performance of a contract for the sale thereof. Hart is not the owner of the property involved, and the action is not one to set a conveyance thereof aside or to compel specific performance, but the action is brought to charge such real property (after Hart’s rights and interests therein are extinguished) with a lien sufficient to pay the judgments represented by the plaintiff.' The validity of Hart’s mortgage is not challenged and no relief of any kind is asked against him. The whole object of the action is to reach the property (after the sale on foreclosure shall have been completed and Hart’s mortgage judgment paid) in the hands of Hanbury and impress a lien upon it. It is contended by Hart that if the action is to impress a lien only, the *lis pendens*must be canceled, and *Brox*v. *Biker*(56 App. Div. 388) is cited, but this case does not sustain his contention. In that action the plaintiff sought to impress a lien upon two parcels of real property, in one of which it was alleged that the *61defendant had invested the avails of a fraudulent transfer of his drug business. The complaint in that action alleged defendant’s ownership of the second parcel with no other allegations, and the court held that, as there was no allegation bringing the action — as to the second parcel — within the class specified in section 1670 of the Code of Civil Procedure, a judgment impressing a lien upon that parcel could not be sustained. It is also contended that before the plaintiff is entitled to any consideration in a court of equity he must do equity and pay the mortgage debt, but it must be remembered that the plaintiff’s right to a hen, if sustained, does not attach to the property until after Hart’s judgment is paid and satisfied. If, as contended, Hart has suffered damage through the non-delivery of the referee’s deed and sale of the property for arrears of taxes, it is the result of his own neglect, for he could have compelled Hanbury to complete his purchase at any time after the reversal of the order enjoining the referee from completing the sale.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion, denied, with ten dollars costs.

Burr, Thomas, Carr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.