
    The People ex rel. The Title Guarantee & Trust Co. v. Henry H. Haggerty, as Register of the County of Kings.
    (Supreme Court, Kings Special Term,
    January, 1898.)
    Mew York city — Powers, under the new charter, of a commissioner of deeds in a county other than New York.
    . A person appointed under the charter of the city of New York (Laws of 189.7, chap. 378, § 58) by its board of aldermen as a commissioner of deeds of said city and who, within the statutory period prescribed, took, subscribed and filed his oath in the office of the city clerk of said city and who, thereafter, filed a certificate of his' appointment in the office of the clerk of the county- of Kings and there took, subscribed and filed in its county clerk’s office the oath required by law, is qualified to take oaths, affirmations, proofs and acknowledgments in any of the boroughs of the city of New York and the registrar- of Kings county may be compelled by mandamus to accept his certificate to the satisfaction of a mortgage.
    Motion for peremptory writ of mandamus to compel defendant to receive certificate of satisfaction and to discharge a mortgage of record. The facts appear in the opinion.
    Edwin Kempton, for relator.
    William Hughes, for defendant.
    N. H. Clement, for county clerk.
   Maddox, J.

The respondent has refused to receive a certificate of satisfaction of a mortgage upon real property, recorded in his office, and also to discharge said mortgage of record, for the assigned reason that one Clayton, a commissioner of deeds of the city of Hew York, and before whom the acknowledgment to such certificate was taken,- on January 13, 1898, was not a competent official to take acknowledgment of deeds 'to. be recorded in the county of Kings without additional authorization by the legislature,” and relator seeks by mandamus to compel the reception of said certificate and the discharge of record' of said mortgage.

On or about January 6, 1898, Clayton,, a resident of the borough of Brooklyn, in the county of Kings, and in the city of Hew York, was by a resolution of the board of aldermen 'of said city appointed a commissioner of deeds of said city and he took, subscribed and filed in the city clerk’s office, within the limited time, the oath prescribed by law. He thereupon filed a certificate of his said appointment in the office of the clerk of Kings county, and took, subscribed and filed in said county clerk’s office the oath required by law.

The questions presented are as to the powers of a commissioner of deeds, appointed under section 58 of the charter, chapter 378, Laws of 1897, and the territory over which he may exercise his functions.

By that section, the board of aldermen, without the concurrence of the council or the approval of the mayor, was authorized and empowered to appoint commissioners of deeds, and it is therein provided that “ any person hereafter appointed to the office of commissioner of deeds in and for the city of Hew York by the board of aldermen ” shall, within a limited time and before entering upon the discharge of his duties, take and subscribe the oath of office therein prescribed. Commissioners of deeds in cities have, since the enactment of chapter 751 of the Laws of 1848, been appointed by the common council of such cities respectively. A commissioner of deeds may take oaths and.affirmations “within the district in which the officer is authorized to act ” (§ 842, Code of Civil Procedure); he “ shall have power to take proof and acknowledgment of all written ■ instruments ” (§ 86 of the Executive Law, chap. 683 of the Laws of 1892, as amended by chap. 88 of the Laws of 1894), “ and may take acknowledgment or proof of conveyance of real property ” within “ the district wherein ” he is authorized to perform official duties. § 248 of the Real Property Law, chap. 547 of 'the Laws of 1896.

Subdivision 1 of section 4 of chapter 3, part 2 of the Revised Statutes provided that “no * * * commissioner of deeds for a county or city shall take any such proof or acknowledgment out of the city or county for which he is appointed.” This section and the whole chapter were repealed, and, as appears by the revisers’ notes, section 248 of the Real Property Law is a revision of that subdivision.

Section 10 of the Public Officers Law, chapter 681 of the Laws of 1893, requires the filing by a commissioner of deeds of Ms oath of office “ in the office of the clerk of the county in wMch he shall reside,” and thus it seems most plain that, upon compliance with the several statutory requirements above noted, that a commissioner of deeds in and for the city of Rew York has power to take oaths and affirmations, proofs and acknowledgments of written instruments and conveyances of real property. But witMn what district, whether in the whole or only a part of the greater city, since it now embraces more than one county?

By the language of section 58 of the charter, in my opinion, a commissioner of deeds appointed thereunder has authority to take oaths, affirmations, proofs and acknowledgments in any of the boroughs of the city, for the office is, by that section, defined to be “ in and for the city of Rew York,” and the whole city is, therefore, the “ district wherein such officer is authorized to perform . official duties ” within the contemplation of, section 248 of the Real Property Law and section 842 of the Code of Civil Procedure.

• An instrument proved or acknowledged within the city of ReW York before a commissioner of deeds of that city is entitled to be read in evidence or to be recorded in the county in which the offi- • cer resides without authentication by the- certificate of the clerk of that county, provided the officer has filed in such county clerk’s office the oath - of office required by law. § 10, ¡Public Officers Law. In. the other counties, however, though embraced in whole or in part within the city, there must be. such authenticatin' § 259, Real Property Law, chap. 541, Laws of 1896.

The motion is, therefore, granted, but without costs.-

Motion granted, without costs.  