This action was brought to charge a lot on Twenty-seventh street, two lots on Forty-first street and one lot on Broadway in the city of New York with the payment of $40,000, or so much as should be found due the plaintiff on an accounting, alleged to have been wrongfully invested by the defendant in those pieces of real estate. The action was tried before a referee, who made a report directing that the complaint be dismissed on the merits, with costs, on which a judgment was entered, which was reversed by the General Term and a new trial granted, costs to abide the event, for an error committed by the referee in requiring the plaintiff to call and swear Mr. Woodward as a witness. The order appealed from granted a new trial to be had before a referee named in it, with costs to abide the event, but, in addition, it directed that the complaint and notice of pendency of action be amended by striking out all allegations concerning the lots *Page 116 on Twenty-seventh, Forty-first streets and Broadway, thus depriving the plaintiff of the right of establishing any lien upon those lots in case he should succeed in the action. From this part of the order the plaintiff appealed to this court. This action is one in which the plaintiff had the right to record a notice of its pendency. (Code C.P. § 1670; Mills v. Bliss,55 N.Y. 139.) This right was an absolute one, not resting in the discretion of the court, but conferred by statute, and having been properly filed, it cannot be canceled except pursuant to section 1674 of the Code of Civil Procedure. (Mills v. Bliss,supra; Wilmont v. Meserole, 9 J. S. 274; Brainerd v.White, 16 id. 399; Niebuhr v. Schreyer, 13 Daly, 546.)
No motion for an order directing the amendment of the complaint, or of the lis pendens, was made, and the record does not disclose the existence of any of the causes prescribed by section 1674 for the cancellation of the notice, nor does it disclose that either counsel was heard upon the question. Upon such a record, and under such circumstances, the General Term was without power to direct that the notice of the pendency of the action be so amended as to cancel and destroy it.
The objection is made that the plaintiff did not stipulate that if the order appealed from is affirmed judgment absolute shall be rendered against the appellant as required by subdivision 1 of section 191 of the Code of Civil Procedure. It will be observed that the plaintiff has not appealed from that part of the order granting a new trial, or from any portion of it which the General Term had power to grant, but limited his appeal to the clause which, in effect, canceled the notice of the pendency of the action and amended the complaint without a hearing. When an appeal is taken from a provision inserted in an order granting a new trial which the court had no authority to make because the question so decided was not presented by the record, the stipulation need not be given.
The part of the order appealed from should be reversed, with costs.
All concur.
Ordered accordingly. *Page 117