Lipschutz v. Horton

Scudder, J. On December 20, 1906, plaintiff filed a notice of pendency of action with directions to the clerk to index the same against both defendants. The summons had not been served on either defendant. On January 22, 1907, the defendant Horton died. Although defendant Smith appears to have been within the State and made no attempt „ to evade personal service of summons, the plaintiff allowed fifty-six days to elapse without making any effort to serve him and, on February 15, 1907, filed another notice of pendency of action which was an exact copy of the first. After the filing of the second notice, plaintiff still made no effort to serve the summons but allowed sixty days to elapse and, on the sixtieth day, April 16, 1907, filed a third notice of pendency of action. On May 11, 1907, the defendant Smith procured an order cancelling the first and second [45] notices of pendency of action. The present motion is to cancel the third notice, which was filed on April sixteenth. Section 1670 of the Code of Civil Procedure provides that a notice of pendency of action “ may he filed with the complaint, before the service of the summons; but, in that case, personal service of the summons must be made upon a defendant, within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor.” This section only authorizes the filing of one notice and requires the service of the summons within sixty days after the filing of that notice. It does not permit the filing of successive notices so as to enable plaintiff to obtain the benefit of a notice of pendency of action, indefinitely, without service of a summons. The injustice and hardship which would be occasioned by such procedure, if it were permissible, need not be commented’upon. The notices filed in this case subsequently to the original notice were unauthorized, and defendant is entitled, therefore, to have them cancelled. Where plaintiff fails to serve the summons within sixty days after filing the notice, as provided by section 1670', the defendant aggrieved may apply to the court under section 1674 of the Code for the cancellation of the notice upon the ground that plaintiff has unreasonably neglected to proceed in the action. See Levy v. Kon, 114 App. Div. 795. It is questionable, however, if plaintiff’s failure to serve the summons within the required time can also be regarded as a failure to prosecute the action which would entitle defendant to dismissal of the complaint. The cancellation of the notice would seem to be a sufficient remedy. The order in this case cancelling the original notice determined the rights of the parties, so far as they could be affected by the filing of a notice of pendency of the action. This order, until it is reversed on appeal, is the law of the case; and the plaintiff has no right to file another notice while such order remains in force. See Cohen v. Ratkowsky, 43 App. Div. 196. Motion to vacate notice of pendency of action granted, with ten dollars costs.