
    In the Matter of the Application of Charles M. Coss, Respondent, to Cancel the Satisfactions of Certain Mortgages and Restore a Lien of Priority on Certain Lands in the County of Rensselaer, N. Y. Henry De Freest, as Executor, etc., of Richard M. De Freest, Deceased, Appellant.
    Third Department,
    May 3, 1911.
    Equity—jurisdiction to restore lien of mortgage — practice — court cannot act oh petition — constitutional law.
    The court has no jurisdiction to restore on petition the lien of mortgages which are alleged to have been satisfied by ignorance and mistake. This, because, while such relief may be given by a court of equity, section 3 of article 6 of the Constitution requires the testimony in equity eases to be taken in like manner as in cases at law.
    Appeal by-Henry De Freest, as executor, etc., of Richard M. De Freest, deceased, from an order of the Supreme Court, made at the Albany Special Term -and entered in the office of the clerk of the county of Rensselaer on the 3d day of January, 1911, restoring for record certain mortgages which had been discharged, of record.
    
      John Scanlon, for the appellant.
    
      Andrew P. McKean [J. K. Long of counsel], for the respondent.
   Smith, P. J.:

Charles M. Coss was the owner of certain land in the city of Troy, upon which were two mortgages which had been executed by him and thereafter purchased by him with moneys belonging to his son, Harry G\ Goss. The assignments were taken to him as general guardian of said Harry G-. Goss. After the said Harry Gr. Goss became of age these mortgages were satisfied by the recording of satisfaction pieces executed by Charles M. Goss as general guardian, and also by Harry G-. Goss. The satisfaction of these mortgages is claimed to have been made for the purpose of raising money upon a new mortgage thereafter executed by Charles M. Goss for the payment of the moneys due to Harry Gr. Goss from his father as his general guardian. After the satisfaction of the two mortgages aforesaid it transpired that there was a judgment against Charles M. Goss owned by this appellant, which was a subsequent lien to these two mortgages and which by their cancellation became the first lien upon the property. The mortgagee in the mortgage subsequently executed withheld from the amount of moneys secured by the mortgage a sufficient sum to protect him from this judgment. Thereupon Charles M. Goss, together with Harry Gr. Goss and this mortgagee, petitioned the court for leave to have restored the lien of the two mortgages which had been satisfied, on the ground that they were satisfied by reason of the ignorance of Harry Gr. Goss of their existence and of the forgetfulness of Charles M. Goss that such judgment was a lien upon the premises. The order here appealed from restores the said two mortgages as liens prior to the appellant’s judgment.

The granting of the order is challenged upon the merits, but this ground of challenge it is' unnecessary to consider in view of our conclusion that this relief cannot be obtained by petition. The general jurisdiction of our Supreme .Court to grant relief, both legal and equitable, must be exercised in accordance with certain prescribed procedure. That such relief could be given in an equity action in a proper case ■ is unquestioned. In such an action, however, under the provisions of section 3 of article 6 • of the Constitution the testimony would be required to be taken in like manner as in cases at law. Under that section it has been held that a court has no power in an equity case to make a compulsory order directing testimony to be taken before a referee and the cause to be brought to trial upon the pleadings and evidence, so taken. (Farmers’ National Bank of Malone v. Houston, 44 Hun, 567.) Nor is it possible that this . constitutional protection given . in an equity action may be evaded by proceeding through' petition for the same relief. In Matter of Livingstpn (34 N. Y. 555, 569) the general rule was stated: “As a general rule, petitions can only be presented in an action already commenced,, or in a matter over ■ which the court has jurisdiction by some act of the Legislature or other special authority.” This rule of procedure is again stated in Matter of King (42 Hun, 607). ' This proceeding is sought to be justified as a special proceeding, as defined by the Code. In 1 Cyclopedia of Law and Procedure (p. 722) it is said: “The greater portion of the remedies which are special under the Code provisions here discussed are statutory remedies. " ” * But there are some anomalous remedies which antedated the Code and have survived the changes made by it, and these are also special proceedings. ” There is- a' singular absence of authority as to the right to proceed by petition. This must arise, 7 rwever, from the general acceptation of the rule that We relief of the nature here asked can Only be obtained My an action,- unless' by reason ' of-.some special statutory permit, or unless in a. matter of which the court has special cognizance.. All trusts are under the general supervision of the court, for which reasons proceedings for their enforcement or regulation may be summary. The judgments of the Court..are always under its control, for which reason a special proceeding'is authorized to reinstate a judgment. ' Mortgages, however, are in no sense' under the control of the court any more than contract's. If this proceeding be authorized I can see no reason why a party cannot proceed in the same way to obtain the specific performance of a contract. The order must be reversed, therefore, for lack of jurisdiction of the proceedings instituted. .' ,

The order should be reversed, with costs, and proceedings dismissed, with costs, as in an action. .

■ All concurred.

Order reversed, with costs, and proceedings dismissed, with, costs, as in an action.  