28 Affidavit of Frederick S. Taggart, Read on Behalf of the Defendant, The Mount Vernon Metal Products Company, Inc.

29

Avenue (said continuation of East Seventh Street being formed by projecting the lines of East Seventh Street as it now exists to the west of South Fifth Avenue in a straight line toward the east until they meet the westerly side of South Third Avenue), running thence along the westerly side of South Third Avenue the following courses and distances: South 21 degrees 33′ 45′′, East fiftytwo and 66/100 (52.66) feet, South 26 degrees 1′ 27′′, East eighty-six (86) feet, South 16 degrees, 47' 11", East thirty-four and 92/100 (34.92) feet, South 26 degrees 25' 3", East thirteen and 42/100 (13.42) feet, thence leaving the westerly line of South Third Avenue and running South 85 degrees 0', West one hundred and four and 63/100 feet, thence North 24 degrees 14', West one hundred and eighty-eight and 65/100 (188.65) feet to the southerly side of the said continuation of East Seventh Street, and thence North 85 degrees O', East along the said Southerly side of the said continuation of East Seventh Street one hundred and ten and 62/100 (110.62) feet to the point 30 or place of beginning.

3. That the above described lands are those referred to and particularly described in the third paragraph of the complaint and in the notice of pendency of action filed herein.

4. That the plaintiff herein served a summons and complaint upon the defendant on October 3rd, 1921, and at the same time served a copy of a notice of pendency of action, entered and filed in the office of the Clerk of Westchester County, on the 3rd day of October, 1921, by the attorneys for the plaintiff.

Affidavit of Frederick S. Taggart, Read on Behalf 31 of the Defendant, The Mount Vernon

Metal Products Company, Inc.

5. That prior to the service of the summons and complaint and the filing of the notice of pendency of action, the plaintiff had been in possession of the premises described in the second paragraph of this affidavit under and by virtue of a certain agreement dated January 30, 1920, a copy of which agreement is attached to the complaint by the plaintiff and made a part thereof and identified as "Schedule A."

6. That on or about the 22nd day of June, 1921, 32 the plaintiff served upon the defendant a written notice that on the 30th day of September, 1921, the plaintiff would relinquish and terminate the management, business, and affairs of the said defendant, and would also elect to terminate the said agreement on January 30, 1920.

7. That on or after the 30th day of September, 1921, demand was made upon the plaintiff for possession of the lands and premises above described, and the same was refused.

8. That the plaintiff, his servants, agents, officers, or representatives have been, since before 33 the 30th day of September, 1921, up to the present time, and are now in physical possession of the lands and premises above described, together with the personal property in the building contained, including all of the machinery, tools, equipment, patterns, dies, cutters, designs, furniture and fixtures belonging to this defandant, and has refused to deliver possession thereof to the defendant.

9. That the plaintiff was in possession of the said lands and premises on the 3rd day of October, 1921, when the notice of pendency of action was

34 Affidavit of Frederick S. Taggart, Read on Behalf of the Defendant, The Mount Vernon

Metal Products Company, Inc.

filed in the office of the Clerk of Westchester County, and the summons and complaint served upon the defendant.

10. That the action brought by the plaintiff against the defendant is not an action brought to recover a judgment affecting the title to or the possession, use, or enjoyment of real property.

11. That the allegations of fact in the complaint, 35 upon which the right to file this notice of pendency of action rests, do not set out a cause of action within the statute, but set out only the cause of action for the recovery of a sum of money.

12. That the allegations in the complaint based upon the contract of January 30, 1920, copy of which is attached thereto, set forth the making of the contract, the taking over by the plaintiff of the stock in trade, property, and concerns, and management of the defendant to and including the 30th day of September, 1921.

13. That the plaintiff kept books of account, re36 ceived and disbursed moneys for the account of the defendant and furnished certain statements of account to the defendant.

14. That sums of money and merchandise specifically stated in the complaint were expended, advanced, or laid out for and on behalf of the defendant, and that no part thereof has been repaid, except certain amounts in merchandise and cash, which are specifically credited to the defendant, and the plaintiff further alleges that there is due an amount of interest on certain alleged balances and a certain commission of 5% under the terms

Affidavit of Frederick S. Taggart, Read on Behalf 37 of the Defendant, The Mount Vernon

Metal Products Company, Inc.

of the agreement of January 30, 1920, for services. rendered to the defendant.

15. That the plaintiff supplied the working capital to the defendant and that the amount necessarily laid out and expended on account of the defendant, is a definite and stated sum of money.

16. That the plaintiff determined to relinquish and terminate its management of the defendant's property and to terminate the agreement under the provisions respecting such termination in the agreement, and that such termination was had.

17. That the defendant served and filed an answer and counter-claim on October 22nd, 1921, and on November 10, 1921, served an amended answer and counter-claim.

38

18. That the plaintiff, on the day that the lis pendens was filed and the summons and complaint served, to wit, on October 3rd, 1921, made demand upon the defendant for the payment of the amount alleged to have been advanced for and on behalf of the defendant, amounting to $78,265.48, and 39 that the defendant has failed and refused to pay the same.

19. That these allegations of fact would not justify a judgment giving to the plaintiff any lien upon any theory upon the property of the defendant. There is no allegation from which any legal theory can be advanced that the terms of the agreement, under which the parties acted, or under the allegations of the complaint, contemplated or justify the filing of a notice of pendency of action.

20. Plaintiff has no lien upon the defendant's real estate, either legal or equitable, and no fact is

40 Affidavit of Frederick S. Taggart, Read on Behalf of the Defendant, The Mount Vernon Metal Products Company, Inc.

alleged which justifies or would support the prayer of the complaint that the plaintiff be adjudged to have a lien upon the property of the defendant.

21. That the allegations contained in Paragraph "XVIII" of the complaint, even if true, do not support or justify the filing of a notion of pendency of action, nor a judgment creating a lien upon the facts of the complaint, and no judgment can be granted affecting the real estate above de41 scribed and set forth in the notice of pendency of action. That the action in fact is not brought under the provisions of Paragraph 120 of the Civil Practice Act, and has no possible relation to real estate, and there is no allegation in the complaint which brings the action within the class of those actions which affect the title to real property, as appears from an examination of the complaint filed herein. The action is brought to enforce an alleged personal obligation of the plaintiff against the defendant, and it is not an action brought to recover a judgment affecting title to or the use, possession, or enjoyment of real property.

42

22. That the defendant is a stock corporation, organized, and existing under and by virtue of the laws of the State of New York, and the filing of the notice of the pendency of action in this suit is an attempt, on the part of the plaintiff, to procure what is in effect an attachment against the real property of a resident defendant, and the allegations in the complaint that the defendant has no cash or other resources out of which the alleged indebtedness can be paid to the plaintiff, that the prayer that a lien for the amount demanded be established upon the defendant's real estate, and