and wife, it is ipsum matrimonium. Cheney v. Arnold, 15 N. Y., at page 348. The acts of the parties show that they did not intend marriage. They met on the street, strangers, and went to a socalled "furnished-room house." They passed under different names, and in her correspondence with him she used her name, not his. Their relations were evidently meretricious from the beginning, and the fact that they lived together in illicit intercourse is wholly insufficient to raise a presumption of marriage. Rose v. Clark, 8 Paige, 574; Clayton v. Wardell, 4 N. Y. 230. The unfortunate position of the plaintiff is to be regretted, but, where parties seriously contemplate marriage, there is no trouble in a large city like New York to find some clergyman, judge, alderman, or other official willing to officiate. If this is not to the liking of the parties, and they prefer a common-law contract, they should take care either to reduce their agreement to writing or induce willing friends to witness the obligation. All these safeguards were disregarded, and the parties must abide the consequences. Upon the entire case, there must be judgment for the defendant.

RUBLINSKY v. RUBLINSKY.

(Superior Court of New York City, Special Term. July 20, 1893.)

1. DIVORCE-ALIMONY PENDENTE LITE.

Where defendant, in an action for divorce on the ground of adultery, denies the charge on oath, she will be granted alimony and counsel fees, though it appears by plaintiff's affidavits that she is guilty of the charge. 2. SAME-POVERTY OF HUSBAND.

In an action by a husband for a divorce on the ground of adultery, which defendant denies on oath, the poverty of the husband is not a defense to an application for alimony pendente lite.

Action by Moritz Rublinsky against Maritta Rublinsky for absolute divorce. Defendant moves for alimony and counsel fees.

Granted.

Jacob Levy, for the motion.

C. Bell, opposed.

GILDERSLEEVE, J. This is a motion by the defendant for alimony and counsel fee pendente lite. The husband sues for absolute divorce on the ground of adultery. The answer of the wife denies the alleged adultery, and asks for a separation. The affidavits submitted by the wife allege her extreme poverty, and dependence for support on her relatives. The plaintiff submits sev eral affidavits in support of his charge of adultery on the part of the defendant, and also alleging poverty as a further reason why the court should not grant any alimony or counsel fee. In an action for divorce by the husband against the wife for adultery, she is entitled to an allowance for her support pending the litigation, and to a further sum to enable her to defend the action, if she denies, on oath, the charge of adultery, although it may appear by affi

davits on the part of the husband that she is guilty of the charge. The poverty of the husband forms no defense to such an application, although the circumstances in life of the parties should be taken into consideration in fixing the amount. Hallock v. Hallock, 4 How. Pr. 160. The general rule is to award such allowance to a wife sued for divorce, almost as a matter of course, where a substantial defense is disclosed, and not to try the merits upon conflicting affidavits. Leslie v. Leslie, 6 Abb. Pr. (N. S.) 193. am of the opinion, after careful consideration of the papers before me, that the plaintiff should pay his wife $6 a week alimony, and a counsel fee of $25.

I

MURRAY et al, v. BARTH et al.

(Superior Court of New York City, Special Term. July 24, 1893.)

LIS PENDENS-MOTION TO CANCEL.

Though an undertaking in discharge of a mechanic's lien after action was brought to foreclose, and notice of lis pendens filed, has been given as provided by Laws 1885, c. 342, § 24, subd. 6, a motion to cancel the lis pendens will not lie, as Code Civil Proc. § 1674, authorizing such relief, does not include such case, but only applies (1) where the action is settled, discontinued, or abated, or final judgment rendered against the party filing the notice, and the time to appeal has expired; (2) where plaintiff filing the notice unreasonably neglects to proceed; and (3) in a judgment creditors' action, where the amount is paid into court, or a bond therefor is filed. Action by James Murray and others against John C. Barth and others to foreclose a mechanic's lien. The owner of the property moves to cancel a lis pendens, notice of which was theretofore filed. Denied.

Kurzman & Frankenheimer, for the motion.
C. S. Bloomfield, opposed.

GILDERSLEEVE, J. This is a motion to cancel a lis pendens. The action was brought to foreclose a mechanic's lien. The defendants, who are the owners of the premises, were allowed to give an undertaking, under subdivision 6, § 24, c. 342, of the Laws of 1885, in discharge of the lien, and an order was granted dischar ging the same. But the lis pendens which the plaintiffs filed still remains, and defendants now move to have it canceled, claiming that they are entitled to the relief sought, for the reason that they have amply secured the plaintiffs' rights by the bond which they have filed in discharge of the mechanic's lien. I am of the opinion that it is not within the power of the court to cancel the lis pendens in this case. Section 1674 of the Code provides under what circumstances a lis pendens may be canceled, which are: (1) Where the action is settled, discontinued, or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired; (2) if a plaintiff filing the notice unreasonably neglects to proceed in the action; and (3) in a judgment creditor's action, upon payment into court of the amount indicated, or the filing of the bond specified in the sec

tion. None of these conditions are presented in the case at bar. Where the action is one in which the right is given the plaintiff by the Code to file a lis pendens, the right is absolute, not resting in the discretion of the court; and if the notice is properly filed it may not be canceled, except pursuant to the provisions of section 1674 of the Code. Beman v. Todd, 124 N. Y. 114, 26 N. E. Rep. 326. The provisions of the section should be strictly followed, in all their essential requirements. Willis v. Bellamy, 53 N. Y. Super. Ct. 97. The general term of the court of common pleas held in the case of Niebuhr v. Schreyer, 13 Daly, 546, that "the right to file a lis pendens is an absolute right, not depending on the discretion of the court, and, a proper notice once filed in a proper action, the court can only order canceled when the action shall be settled, discontinued, or abated, or final judgment rendered against the party filing the notice, and the time to appeal has expired, or when the party unreasonably neglects to proceed." Since that decision was rendered, however, the legislature (Laws 1892) has extended the scope of the statute, (section 1674 of the Code,) so that now, in a judgment creditor's action, the lis pendens can be canceled upon paying money into court, or giving a bond as provided for in the section. But this amendment does not affect the case at bar, which is an action to foreclose a mechanic's lien, not a judgment creditor's action; and the rule above laid down, that the statute must be strictly construed, and that the court has no power to cancel the lis pendens, except in accordance with the provisions of section 1674 of the Code, controls this motion. The motion to cancel the lis pendens must be denied, with $10 costs.

(2 Misc. Rep. 487.)

ZIEHEN v. SMITH et al.

(Rockland County Court. February, 1893.)

Vendor and PURCHASER-DEFAULT OF Vendor-Tender BY PURCHASER. The existence of liens on land subject to a contract of sale is sufficient proof of the vendor's default to authorize the purchaser to rescind the contract, and sue for money paid under the contract, without making a formal tender of performance on his part. Morange v. Morris, *42 N. Y. 48; Hewison v. Hoffman, (Com. Pl. N. Y.) 4 N. Y. Supp. 621, followed.

Action by Ziehen against David J. Smith and John J. Smith to recover money paid by plaintiff on a contract for the purchase of land. There was a verdict for plaintiff, and defendants move for a new trial. Denied.

Abram S. Demarest, for plaintiff.
Frank P. Demarest, for defendants.

WEIANT, J. On August 10, 1892, the defendant David J. Smith, by John J. Smith, his agent, and codefendant in this action, entered into a written contract, whereby he agreed to sell to the plaintiff in this action a parcel of real property therein described

for the consideration of $3,500, which was to be paid and secured as follows: $500 cash upon the execution of the contract; $300 cash on the 15th day of September, 1892; to assume a mortgage of $1,000 then upon the property; and for the balance of $1,700 the plaintiff was to give the vendor his bond and mortgage upon the said premises, payable on or before one year after date. The vendor agreed that he would "by good and sufficient deed, subject to a mortgage of $1,000, convey and assure to the plaintiff the said premises." The contract does not express in words when this conveyance was to be given, but the clear understanding appears from the entire writing to be that the payment of the $300, the giving of the $1,700 bond and mortgage on September 15, 1892, by the plaintiff, and the delivery of the deed by the vendor, were to be concurrent acts. The plaintiff, at the time the contract was entered into, paid the defendant David J. Smith, through his brother and agent, John J. Smith, the $500 cash. Prior to the 15th day of September, 1892, the plaintiff caused a search of the title. to be made, and thereupon discovered that there was upon the premises, besides the $1,000 mortgage to be assumed, another mortgage to one John F. Shankey for $1,500, bearing date May 12, 1888, and recorded May 11, 1891. The parties seem never to have had any communication with each other thereafter about the sale. Mr. Andrew X. Fallon, an attorney and counsellor, made a search of the title of this property, and on the same day called on the defendant John Smith, and asked him about the $1,500 mortgage. Smith replied that he "was to meet his attorney, who would fix the matter." He also testified that he repeated his statement to the defendant David J. Smith, who answered that he did not know any. thing about the $1,500 mortgage. A suit for the foreclosure of this $1,500 mortgage appears to have been commenced, and a note of pendency thereof filed in the office of the county clerk on July 21, 1892, and wherein a judgment was granted September 30, 1892, under which the premises were subsequently sold and conveyed. Thus the matter stood without further interview or communication between the parties until the bringing of this action. The action was tried and disposed of as one brought by a vendee against a vendor to recover back the $500 paid, and damages for the expense which the plaintiff incurred in his preparation to carry out the contract. The complaint was dismissed as to the defendant John J. Smith, and as to David J. Smith the case was submitted to the jury, who rendered a verdict for the $500 and interest, and $25 for the expenses of the search of title. During the course of the trial, by mction, and upon the submission of the cause to the jury, by request to charge the defendant's counsel contended for the legal proposition that, in order that the plaintiff might recover, he was bound to prove that he demanded of the defendants a performance of the contract, and tendered a performance on his part. This the court refused to do. A motion for a new trial was then made upon the minutes, and exceptions taken, which raised the question that I am now called upon to decide.

There does not seem to be accord of authorities touching this question. In Hudson v. Swift, 20 Johns. 24, which was an action to recover back part of the consideration money paid on a contract for the purchase of land, it was held that the plaintiff must show that he has tendered the residue of the purchase money, and demanded a deed, so as to put the vendor in a default. This was a case, also, where the covenants were dependent, and the payment of the money was an act to be concurrently done with the giving of the deed. In Fuller v. Hubbard, 6 Cow. 13, the vendee also sought to recover back the purchase money he had paid, and it was there decided that, where one agrees to convey on the payment of money, the vendee must not only tender or pay the money, but he must demand a conveyance; citing Hudson v. Swift, 20 Johns. 24. The plea of the plaintiff therein was of a judgment that was a lien upon the lands, and the judgment in his favor in the trial court was reversed. The same principle was laid down in Green v. Green, 9 Cow. 47, and the case of Hudson v. Swift, 20 Johns. 24, approved. In Hartley v. James, 50 N. Y. 38, Judge Allen, writing the opinion, says, at page 42:

"The general rule is that, when the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for a breach of the contract, either by way of damages for the nonperformance, or for the recov ery of money paid thereon, not only to be ready and willing to perform on his part, but he must demand performance from the other party."

And again:

"In this state the rule is that he must also tender performance on his part."

The learned judge cites with approval the cases above, and adds:

"The necessity of a formal tender or offer of performance by the one party, and a demand of performance by the other, may be obviated by the acts of the party sought to be charged, as by his express refusal to perform, or by putting himself in a position in which performance is impossible. Mere de fect of title in the vendor and a present inability to give such a title as the contract calls for, may not, in all cases, and under all circumstances, dispense with a tender of payment and a demand of a conveyance by the vendee, in order to entitle the latter to maintain an action for the money already paid, or to defend an action for the purchase money, if the payment becomes due before a deed is to be given by the terms of the contract. Under some circumstances the court will not hold a contract void by reason of the inability of the seller to make a perfect title, but will put the purchaser to a tender of payment and a demand of the deed, to the end that the seller may make his title good." "If a seller of lands by an executory contract of sale, before the day of performance, gives notice of his intention not to perform, or absolutely refuses to perform, or on being applied to is unable to perform, or offers a defective title, a formal tender and offer of payment and demand of a deed by the purchaser is not necessary to entitle him to treat the contract as rescinded, and recover back what he has paid thereon."

The learned judge under each proposition cites authorities sustaining the same.

In Bogardus v. Insurance Co., 101 N. Y. 328, 4 N. E. Rep. 522, Chief Judge Ruger, expressing the opinion of the court at page 335, 101 N. Y., and page 524, 4 N. E. Rep., says: