it

FIRST DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. car, the use of the brake, rather than the other appliance provided for the stopping of the car, was not, under the circumstances here disclosed, evidence of negligence, but the question as to which appliance should be used depended upon the judgment of the motorman under the circumstances as they appeared at the time. It is evident that if the brake had been sufficient to stop the car a few feet short of the place at which it was stopped, the brake would have been the more certain method of stopping the car than the reverse handle, but regard being had to the space within which the car was stopped, may be said to be somewhat more probable that the use of the reverse handle would have avoided the accident, but we are not justified in requiring of a person placed in a position of this kind. where his judgment had to be exercised in a moment of danger, and where any hesitation in the exercise of such judgment would produce serious consequences, a knowledge of subsequent events and a judgment based thereon. It is by no means clear that in the the situation in which the motorman found himself it was not more probable that the car would have been stopped and the accident avoided by the use of the brake rather than by the use of the other appliance. There is no substantial dispute that when it first became apparent to a person on the car that this child was upon the track in danger, the motorman at once endeavored to stop the car. There is no evidence to show that he was neglecting his duty; that he was not watchful; that he did not see the plaintiff as soon as she could be seen by one in his position, or that there was anything up to the time that he commenced to put on this brake that would justify an apprehension of danger to the plaintiff.

This case is not unlike the case of Fenton v. Second Avenue Railroad Company (supra). Under the rule applied there, it is clear that no negligence could be attributed to this motorman: "If it be assumed that the boy fell twenty feet in front of the horses, as testified to by one of plaintiff's witnesses, then the horses going at the usual rate of speed, assuming it to be six miles an hour, would have reached him in about two seconds, and that was all the time the drivers had to see the peril, apply the brake and arrest the motion of the car before reaching him, and there is no evidence that, by the exercise of all the vigilance that the law requires of drivers under such circumstances, they could, after the boy had fallen upon the track,

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1897.

have arrested the car in time to save him from injury. If it be assumed that they saw him as he approached the track, they had the same reason to suppose that he would get across that he had, and he probably would have crossed in front of the horses in safety if he had not fallen. No negligence can be attributed to the drivers because they did not apply the brake before the boy fell, because then, for the first time, the peril commenced and became apparent." This is applicable to the case at bar. These children, running across the track in front of the car, with plenty of time to cross in safety, were in no apparent peril. That peril became apparent for the first time when it appeared that the child's foot had caught in the rail. There could be no negligence in the motorman's not applying the brake or stopping the car until it became apparent that the child could not cross the track in safety.

The finding of the jury that the defendant was guilty of negligence was without support, and the complaint should have been dismissed.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

VAN BRUNT, P. J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide

event.

THOMAS P. FITZSIMONS and DE LANCEY T. SMITH, Appellants, v. WILLIAM DROUGHT and CATHARINE WALSH, Respondents.

Lis pendens when an order canceling it may be made.

Where, in an action brought to recover a judgment affecting the title to real property, a notice of pendency of action is filed in accordance with section 1670 of the Code of Civil Procedure, the circumstances enumerated in section 1674 of the Code must exist before the court is authorized on motion to cancel such notice, that is, the time to appeal from a final judgment must have expired or the plaintiff must have unreasonably neglected to proceed with the action.

APPEAL by the plaintiffs, Thomas P. Fitzsimons and another, from an order of the Supreme Court, made at the New York Special

FIRST DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

Term and entered in the office of the clerk of the county of New York on the 18th day of January, 1897, canceling a notice of the the pendency of the action.

James P. Campbell, for the appellants.

Albert W. Venino, for the respondents.

VAN BRUNT, P. J.:

This action having been brought to recover a judgment affecting the title to real property, under section 1670 of the Code, the plaintiff could file a notice of pendency of action, and this, irrespective of the question as to whether the action was well brought or not. In such a case the court has power to cancel the notice of pendency after the time to appeal from a final judgment in the action has expired, or the court may do so if the plaintiff unreasonably neglects to proceed with the action.

It is undoubtedly true that where a notice of pendency of action is filed in an action in which such filing is not authorized, the court may set it aside. But where such notice is filed in a proper action it would seem that the circumstances enumerated in the Code must exist before the court is authorized to act.

The motion in the case at bar was, therefore, prematurely made, and the order should be reversed, with ten dollars costs and disbursements, and the motion dismissed, without costs and without prejudice to a renewal of the motion.

RUMSEY, PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion dismissed, without costs and without prejudice to a renewal of the motion.

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1897.

ELIZABETH FREDERIKA KOKE, as Administratrix, etc., of FREDERICK C. KOKE. Deceased, Respondent, v. FRANK BALKEN and Others, Appellants, Impleaded with JOHN HENRY BALKEN and Others. Election - an unsuccessful action to set aside a contract, not a bar to the foreclosure of a mortgage executed pursuant to such contract.

A party who brings an action to set aside a contract for the sale of land on the ground that it was obtained by fraud, in which action judgment is entered in favor of the defendants, is not thereby estopped from asserting the right to foreclose a mortgage given by such defendants in partial payment for the land and in execution of the contract thus unsuccessfully assailed.

APPEAL by the defendants, Frank Balken and others, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1897, upon the decision of the court rendered after a trial at the New York Special Term in an action brought for the foreclosure of a mortgage.

William R. Martin, for the appellants.

Josiah T. Marean, for the respondent.

VAN BRUNT, P. J. :

In 1873 one John Balken and Frederick C. Koke became owners as tenants in common of the mortgaged premises. They erected thereon a five-story building. Mr. Koke died in 1876, intestate, leaving him surviving eight children, his heirs at law, then infants, and all now living and, since 1893, of full age, and a widow, the plaintiff, who was appointed his administratrix and who still remains such administratrix. The property was subject to a purchase-money mortgage for $10,000, and Mr. Koke had mortgaged his one-half share by a second mortgage for $1,500, which fell due in March, 1878. Mrs. Koke was unable to pay it, and on the 21st of February, 1878, she executed a contract as administratrix to sell said onehalf belonging to the estate of the intestate to John Balken for the sum of $9,175, to be paid as follows: The sum of $6,500 by the assumption of mortgages; the sum of $2,500 by Balken's bond secured by a mortgage on the premises, and the sum of $175 in

FIRST DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. cash on the delivery of the deed. This contract provided that the deed was to be delivered as soon as a decree of the surrogate of the city and county of New York could be obtained for a sale of the premises. Mr. Balken then procured an assignment to his wife of the mortgage of $1,500, and this mortgage was foreclosed by Mrs. Balken as the best way of making title. The property was sold by the referee and conveyed to Mr. Balken. Thereupon, he paid the $175 in cash, and gave to the administratrix, the plaintiff, a mortgage for $2,500. This mortgage was soon after satisfied and a new bond and mortgage given in substitution therefor, in which Mrs. Balken joined as mortgagor. On the 28th of September, 1880, John Balken died, leaving seven children, the defendants in this action, his heirs at law. In 1890, Gustave A. Koke, the eldest of the eight. children, became of age, and requested the payment of the mortgage. An arrangement was made by which an assignment was to be made of the mortgage and the money paid. The counsel for the proposed assignee raised an objection in respect to the service of the infant defendants in the suit to foreclose the $1,500 mortgage, and requested the eight Koke heirs to execute a release. This they refused to do, and the transaction consequently fell through. Thereafter, no interest was paid on the mortgage.

On the 18th of March, 1891, seven of the Koke children having become of age, and one being still a minor, they commenced an action to recover title and possession of their half of the property, with the rents, etc., against the heirs of Balken, on the ground of fraud in the contract. This action was tried at the Special Term and judgment was entered in favor of the defendants. Upon appeal it was affirmed at the General Term, and upon further appeal to the Court of Appeals it was again affirmed.

No interest having been paid upon the mortgage, this action was commenced to foreclose the same. The defendants contended that the plaintiff was barred in this action because in 1891 the plaintiff's children, as heirs of their father, sued the defendants to recover back the land on the ground of fraud, and because the plaintiff, and those whom she represents, had, with full knowledge of all the facts, elected to treat the contract and conveyance to Balken as void, and that the plaintiff could not now enforce a mortgage given in pursuance of such contract.