- This is an appeal by the plaintiff from an order canceling a Us pendens filed by him in an action brought for the specific performance of a contract for the conveyance of. real property, upon condition that the. defendant - Frazier either deposit in court the sum of. $25,00,0, oiy at his election,, file an undertaking in said sum for the payment of any amount which the plaintiff may recover in this action, and to pay the .judgment sought to be enforced against the real.propertv in. the event that final judgment shall be rendered against said defendant Frazier. • .
Section-1670 of the Code, of Civil Procedure provides fhat “ in an action brought to recover a judgment affecting the title to, or the possession, úse or enjoyment of, real property * * * the plain*59tiff may * * * tile in the clerk’s office * * * a notice of the pendency of the action.” Section 1671 of said Code, as amended by chapter 60 of tbe Laws of 1905, provides that “In any action,, other than an action to foreclose a mortgage or for the partition of real property, or for dower, in which a notice of the pendency théreof has been filed, and in which it shall appear to the court, upon a motion made as hereinafter provided, that adequate relief can be secured to the plaintiff by a deposit of money, or in the discretion of the court by the giving of an undertaking, as hereinafter provided, where the cancellation of such notice is not otherwise expressly provided for or regulated, any defendant or any other person having all interest in the property affected by the action may apply for the cancellation of such notice. * * * If the court on-the hearing of the motion shall decide that adequate relief can be secured to the plaintiff and that the case is one in which the judgment sought to be enforced against the real property * * ‘ * - may be secured by the deposit of the amount claimed or by the giving of an undertaking, the court may make an order directing that the applicant make a deposit in court of a sum of money, or * * * give an undertaking * * * and that thereupon, * * * an order be made cancelling such notice of record. The sum required to be paid into court or the amount of the undertaking shall be at least the amount claimed by the plaintiff or the value of the property affected by the action or the interest of the party filing sncli notice therein with interest and costs. * *
In Bresel v. Browning (109 App. Div. 588) this court held that where it manifestly appeared from the complaint that the plaintiff could never obtain a decree for-specific performance, the court at Special Term should have permitted the cancellation of the lis pen-dens upon complying with the provisions of section 1671 of the Code of Civil Procedure. The facts were that the actual dimensions'of the premises were not as set forth in the terms of sale, and the land was subject to a covenant to pave and repair the street in front thereof. We said that “the defendant cannot increase the dimensions of the land, and if thejre be a covenant running with it to pave and keep in repair the street in front, the defendant is quite powerless to rid the land of it. The most, therefore, that the plaintiff can expect is to recover his damages, if any, together with the *60deposit which he has made.” Thereafter the construction of this section of the Code in an action for a specific performance was . before us again in Tishman v. Acritelli (111 App. Div. 237; 97 N. Y. Supp. 668), and in reversing an order canceling a lis pendens upon the giving of an undertaking, we said that “ where the relief demanded is not the payment of a sum of money, but involves.the right of the plaintiff to a/ conveyance of real property described, the Us pendens should not be canceled. * If the plaintiff, upon the facts alleged in the complaint or facts clearly established, is entitled to a specific performance of the contract, and a conveyance-of the ieal • property contracted to be sold, it is’ evident that adequate relief cannot -be secured to the plaintiff by the deposit of a sum of money.”
In Lindheim & Co. v. Central Nat. Realty & Construction Co. (111 App. Div. 275; 97 N. Y. Supp. 619) we said, upon a review of the cases, that on a motion to cancel a lis pendens we are not . authorized to look- into’the facts as upon a trial, nor to search the ' complaint as upon a demurrer, citing Mills v. Bliss (55 N. Y. 139; Brainerd v. White (12 Abb. N. C. 407); Brox v. Riker (56 App. Div. 391), and St. Regis Paper Co. v. Santa Clara Co. (62 id. 538).
■ The learned court at Special Term has examined the complaint as if Upon demurrer and, concluding that specific performance would-hot be decreed, has fixed upon an amount which in its opinion fúr- ■ nishes,.adequate security for any judgment that might be obtained. But we do not think such questions were properly before it, and indeed the appellant complains that • the question decided was not made upon the oral argument and,'the point decided herein not hot having been made, the decision was arrived at without hearing-plain tiff’s counsel upon,that question at all. As stated by the Court of Appeals in Mills v. Bliss (supra): “ Whether the action can be sustained is not a question to be passed upon on this appeal. The plaintiff may fail to prove the facts alleged, or the court ,may hold that ..the, action is untenable upon the facts stated.:. * * The question's of fact as well as of law must be disposed of upon the trial.and hearing of the cause:” '
The order appealed from should be reversed, with ten dollars *61costs and disbursements to the appellant, and the motion denied, with ten dollars costs.
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.