Townsend v. Work 29 N.Y.S. 791

DYKMAN, J.

This is an appeal from an order directing the cancellation of the notice of lis pendens filed in the action. The action is by the assignee of a mechanic’s lien to procure the foreclosure thereof. A referee was appointed on the 29th day of November. 1892, to hear and determine the action; and the trial proceeded before him until the 29th day of March, 1893, when the complaint was dismissed, as against the defendant Emma M. Work, the owner of the premises. After such dismissal, no lien could be established against the property; and the only reason for the continuation of the action was to enable the plaintiff to appeal from the judgment to be entered upon the report of the referee, when it should be made. In that situation the plaintiff was required to use active diligence to bring the trial to a close, to the end that an appeal could be taken. Instead of activity, there was a delay of one year before the order was made from which this appeal is taken. In the meantime the plaintiff received an admonition from the court when the order for the cancellation of the lis pendens was denied, in December, 1892, with leave to renew the motion unless the plaintiff proceeded diligently with the action. We think the plaintiff has unreasonably neglected to proceed in the action, within the intention of section 1674 of the Code of Civil Procedure, and that the order should be affirmed, with $10 costs and disbursements. All concur.