Miller v. Herzog

GIEGERICH, J.

[1,2] The defendants seek by this motion to vacate the amended notice of pendency of action upon the ground that this is not a proper action in which to file the same. Section 1670 of the Code of Civil Procedure provides that a notice of the pendency of the action may be filed “in an action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property.” The amended complaint alleges that after the death of the testatrix the plaintiff, at the special instance and request of the defendants, who are the executors and trustees under her will, performed certain work, labor, and services and furnished materials for the protection of the trust estate, and more particularly in connection with the real property in suit of the reasonable and agreed value of $625, and that no part thereof has been paid, that the executors and trustees, individually, are insolvent, and that the plaintiff has no recourse for his payment of his claim except by the sale of the trust real property. The prayer in the amended complaint demands that the title of the real property which is the subject-matter of this suit and which is in the hands of the executors and trustees, be impressed with a lien. It is well settled that where a debt is contracted by an executor or trustee after the testator’s death and the ex *946 ecutor or trustee is insolvent, the creditor may maintain an equitable ' action in rem against tHe trust estate, provided, however, that the executors and trustees and the cestui que trust are made parties to such an action. Willis v. Sharp, 115 N. Y. 396, 399 , 22 N. E. 149 , 5 L. R. A. 636; O’Brien v. Jackson, 167 N. Y. 31, 33 , 60 N. E. 238 . The rule governing the right to file a lis pendens is stated by the court in Jones v. Armenia Insurance Co., 136 App. Div. 453, 456 , 121 N. Y. Supp. 126 , 128:

“The question that must always be presented in an action of this kind is whether the complaint states a cause of action affecting the title to real property or the use, possession, or enjoyment thereof. If it does, and the complaint demands a judgment affecting the title to or the use, possession or enjoyment of real property, then the court cannot look to see whether the cause of action set forth in the complaint is one in which such a judgment can be granted; it is sufficient if such a judgment is asked for. Schomacker v. Michaels, 189 N. Y. 65 , 81 N. E. 555 .”

Tested by this rule, the filing of the amended notice of pendency of action was clearly authorized, for both the amended complaint and the demand for judgment are of the character indicated in the language just quoted.

Motion denied with $10 costs.