Interboro Operating Corp. v. Commonwealth Security & Mortgage Corp.

Order denying defendant’s motion to cancel the plaintiff’s notice of pendency of action reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The plaintiff, having rescinded and repudiated the contract on the ground of fraud at its inception, cannot have a lien on the premises for its down payment and expenses. (Elterman v. Hyman, 192 N. Y. 113; Davis v. Rosenzweig Realty Co., Id. 128, 133; Goodman v. Schwab, 136 App. Div. 583.) Stay granted for thirty days pending application for leave to appeal to the Court of Appeals. Lazansky, P. J., Young, Seudder and Tompkins, JJ., concur; Davis, J., concurs as to the granting of a stay, but dissents and votes to affirm the order from which the appeal is taken.