The order for service by publication can be sustained only if the complaint alleges a valid cause of action within section 232 of the Civil Practice Act. Subdivision 2 thereof sets forth the three types of property actions in which service by publication may be made: (a) an action to exclude a defendant from a vested or contingent interest or lien on real or personal property within the State; (b) an action to enforce, regulate, define or limit such an interest or lien; or (c) an action otherwise affecting the title to such property.
The complaint herein alleges in essence merely that the contract giving defendant a right of first refusal on the sale *189of the property was recorded, in violation of the agreement between the parties, through the device of being annexed to a purported assignment of a mortgage held by defendant on the property; and that as the contract had never been acknowledged by the plaintiff, it was not legally recordable. While this may spell out a complaint in an action to cancel a recorded instrument under section 329 of the Real Property Law, not every action brought thereunder affects the title to property so as to come within the scope of subdivision 2 of section 232 of the Civil Practice Act. It is highly significant that even though there is a conclusory allegation that the recorded contract constitutes a cloud on plaintiff’s title, plaintiff does not demand, as it could under section 329, that the contract be “ declared void or invalid”. Plaintiff’s challenge is to the propriety of the recording, not to the substantive rights accorded by the contract. It does not actually seek a determination of conflicting claims to or rights in property, nor does it demand the removal of an invalid impediment to the marketability of its title. It invokes procedural deficiencies in order to rid itself of a contemplated embarrassment because defendant is giving constructive notice to the world of a valid and subsisting contract which plaintiff does not challenge in any of its provisions. Plaintiff’s title to the property remains unaffected by the recording, which in no respect changes the terms of the recorded contract.
By the act of recording, defendant may have protected his rights or may even have somewhat enlarged his equitable right to enforce his contract against all subsequent purchasers. Perhaps a cancellation of the recording would have the effect of defining or limiting that right, but the notice given to potential purchasers of defendant’s unchallenged right of refusal casts no cloud on plaintiff’s present title, and renders it no more unmarketable than it was theretofore. In any proper attempt to sell or refinance the property, plaintiff must of necessity inform the potential purchaser or mortgagee of defendant’s right of first refusal. What plaintiff’s complaint boils down to, then, is that by the act of recording, defendant has made it difficult, if not impossible, for plaintiff to sell or refinance the property to others without notice — notice that it is required to give under its contract with defendant and by every concept of fair dealing. A cause of action, however couched, which would enable plaintiff, if successful, to refrain from disclosing required information to innocent purchasers or mortgagees, should not be encouraged by our courts.
*190The order appealed from vacating the ex parte order for service of the summons and complaint by publication should be affirmed.
Frank, Várente, McNally and Bastow, JJ., concur in Per Curiam opinion; Botein, J. P., dissents and votes to affirm in opinion.
Order reversed, with $20 costs and disbursements to the appellant, and the motion denied.