Pape v. Pape

• Decision Date: 14 May 1963
• Citation: 39 Misc.2d 268,240 N.Y.S.2d 501
• Parties: Margaret Jane PAPE, Plaintiff, v. Walter F. PAPE, Defendant.
• Court: New York Supreme Court

Page 501

240 N.Y.S.2d 501

39 Misc.2d 268

Margaret Jane PAPE, Plaintiff, v. Walter F. PAPE, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

May 14, 1963.

Norman Gelfond, Garden City, for plaintiff.

Parker, Duryee, Benjamin, Zunino & Malone, New York City, for defendant; Wagner, Quillinan & Tenant, New York City, of counsel.

JOSEPH LIFE, Justice.

This is an action for separation in which the plaintiff wife has filed a lis pendens against the property owned solely by the defendant. The plaintiff also recorded an instrument entitled 'Declaration of Intention.' The defendant moves to cancel both such instruments.

The declaration of intention recites:

'It is hereby declared that it is the intention of Walter F. Pape and Margaret Pape, his wife, as evidenced and shown in an Agreement between (them) * * * wherein it was agreed that the following property known as: (description) * * * was not to be sold, transferred or in any way encumbered until the marital problems of (parties) * * * were solved; and that said Walter F. Pape is to hold said above described property in trust under the terms of said agreement.'

Section 329 of the Real Property Law affords an owner of real property a cause of action to cancel instruments improperly recorded (Newpar Estates, Inc. v. Barilla, 4 A.D.2d 186, 164 N.Y.S.2d 132, lv. to appeal granted 4 A.D.2d 830, 166 N.Y.S.2d 304; Sobel v. Wolf, Sup., 216 N.Y.S.2d 132 N.O.R.). There is no reason, however, why the Court may not entertain this motion for cancellation since the parties have chosen to submit the question in this manner (Stevenson v. News Syndicate Company, 302 N.Y. 81, 87, 96 N.E.2d 187, 190).

It does not appear that the agreement referred to in the 'declaration of intention' was recorded; it has not been submitted to the Court; and is not made part of the declaration itself except by reference. This instrument, moreover, was executed solely by the plaintiff, and is neither subscribed nor acknowledged by the owner of the property (Real Property Law, Sections 242, 291, 292). It is not in recordable form, and there is no authority to sustain its recordation. The declaration accordingly cannot serve as a basis of support for the filing of the lis pendens, and the action itself is not one in which a notice of pendency is authorized (Sec. 120, Civil Practice Act). The motion must be granted.

The plaintiff's contention that Mr. Justice SUOZZI by his order dated March 27, 1963, sustained the propriety...