Forbes v. Reynard

49 Misc. 154, 98 N.Y.S. 708

• Court: New York Supreme Court
• Decided: January 15, 1906
• Status: Published

Opinion

Leventritt, J.

The receipt of the principal of an overdue mortgage and the execution of a certificate of satisfaction thereof are mere mechanical or ministerial acts, and the rule is that a guardian or other trustee may delegate the performance of such acts to others. Gates v. Dudgeon, 173 N. Y. 426; Myers v. Mutual Life Ins. Co., 99 id. 1; Perry Trusts, § 409. The power of attorney given by Louis P. Siehert as guardian and trustee to Edward Oothout delegates express authority to “ receive all sums of money *" * * now due or hereafter at any time to become due to me as guardian and trustee of said minors, including all principal and interest of any bonds and mortgages * * * and upon payment of any mortgage * * * to execute and acknowledge sufficient certificates to discharge the same of record.” The fact that the power of attorney attempts to confer certain other powers and duties, which the guardian could not delegate, does not invalidate the entire instrument. The principal of the mortgage in question having been paid to a person authorized to receive it, the mortgagor was not bound to see to the application made by the guardian of the sum paid. Real Prop. Law (Laws of 1896, Chap. 547), § 88. It is obvious, therefore, that the certificate of satisfaction executed by Edward Oothout as attorney-in-fact of Louis P. Siehert, guardian, operated as a valid discharge of this mortgage. The plaintiff not only did not discharge the burden which rested upon him to establish the claim that, in the collection of the mortgage, the attorney-in-fact exercised certain discretionary powers which no one but the guardian could exercise (Greenblatt v. Hermann, 144 N. Y. 13, 18; Moser v. Cochrane, 107 id. 35; Maupin Mark. Tit. Real Est. 317), but he presented no evidence to that end.

There must be judgment for the defendant.

Judgment for defendant.