People ex rel. Lewkowitz v. Fitzgerald

21 N.Y.S. 911

• Court: The Superior Court of the City of New York and Buffalo
• Decided: January 9, 1893
• Status: Published

Opinion

DUGRO, J.

This is an application for a mandamus compelling the register to receive, file, and record in his office a satisfaction of a mortgage. The mortgage was made by the relator to a person now deceased. The satisfaction piece was executed by one who had received letters testamentary and qualified as executor in Connecticut. It appears that no letters have been issued in this state. The question is whether the register must accept the satisfaction piece of an executor, appointed in another state, if it appears that no letters have been issued in this state. I .think he must. Under the circumstances, such an executor is a personal representative of the testator, within the meahing of the term as used in 4 Rev. St.¹ (8th Ed.) pt. 2, § 28, c. 3, p. 2474. There is no doubt that a voluntary payment to such an executor would be valid, and discharge a debtor. Schluter v. Bank, 117 N. Y. 125, 22 N. E. Rep. 572. See, also, Doolittle v. Lewis, 7 Johns. Ch. 45; Stone v. Scripture, 4 Lans. 186; Vroom v. Van Horne, 10 Paige, 549; Parsons v. Lyman, 20 N. Y. 112. And, if the payment be of a debt secured by mortgage, I see no reason why the extinguishment of the debt should not operate so as to discharge the mortgage. It is unnecessary to consider the question which would arise if there had been at the time of the payment an executor or administrator in this state.

The writ may issue.

1 4 Rev. St. (8th Ed.) pt. 2. § 28, c. 3, p. 2474, provides: “Any mortgage that ’has been registered or recorded, or that may hereafter be recorded, shall be discharged, upon the record thereof, by the officer in whose custody it shall be, whenever there shall be presented to him a certificate signed by the mortgagee,’ his personal representatives or assigns, acknowledged or proved and certified as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that ■such mortgage has been paid, or otherwise satisfied and discharged.”