
    In the Matter of the Application of Peter Leckie and Emma Leckie, His Wife, Appellants, for an Order Dispensing with the Production of a Certain Mortgage upon the Satisfaction Thereof. The Register of the County of New York, Respondent.
    First Department,
    April 8, 1909.
    Mortgage — discharge of record — section 270a, Beal Property Law, construed — when production of mortgage dispensed with.
    Section 270a of the Beal Property Law, providing that in counties embraced in cities of the first class, mortgages shall not be discharged of record unless in addition to the satisfaction piece the original mortgage be presented to the recording officer, or a certified copy of an order dispensing with its production authorizes the court to direct the cancellation of a mortgage without producing the same, if satisfactory reasons are shown.
    Thus, where a mortgagor wishing to sell the property free of incumbrances shows that the mortgage has been lost, he is entitled to an order for a discharge of the mortgage of record upon producing a satisfaction piece only.
    Where the recording officer opposed a motion for such order in the belief that it was his duty to do so, he will not be charged with the costs of an appeal.
    Appeal by the petitioners, Peter Leckie and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of January, 1909, denying the appellants’ application herein.
    
      Francis J. Kuerzi, for the appellants.
    
      Theodore Connoly, for the respondent.
   Houghton, J.:

The appellants Leckie held a mortgage upon real property in the city of Hew York, which was lost after it was placed on record.

Section 270a of the Real Property Law [Laws of 1896, chap. 547, § 270a, added by Laws of 1903, chap. 490, and amd. by Laws of 1907, chap. 289] provides that in counties wholly embraced in a city of the first class, no mortgage shall be discharged of record unless, in addition to the satisfaction piece, there shall be presented to the recording officer for cancellation the original mortgage, or a certified copy of an order dispensing with the production of such mortgage and directing the discharge thereof without such production. This section contains other provisions with respect to the discharge of a mortgage where the mortgagee refuses to give a satisfaction, as well as for the cancellation of a mortgage which has been fully paid but not satisfied of record, and in addition prescribes the mode of procedure for the obtaining of the order dispensing with the production of the mortgage to the recording officer when the satisfaction piece is presented.

The appellants pursued the prescribed practice and set forth their inability to produce the mortgage because of its loss, and that the owner of the property was under contract to. convey it free and clear of incumbrances and desired to pay the same,- and asked that an order be made permitting its discharge upon production of the satisfaction piece without the production of the mortgage. The learned court at Special Term denied their application on the ground that it appeared the mortgage had not been paid.

We think this is an erroneous view of the statute. The provision requiring the production of a mortgage on its being satisfied, and the retaining of it on file for the term of ten years therefrom, in a community like the county of blew York where such a large number of mortgages exist, is a wise one for preventing subsequent fraudulent negotiation of mortgages which have been paid. While the language of the section is not as clear as it might be, it is perfectly plain that it provides a means whereby a mortgagee may properly satisfy of record a mortgage which he is unable to produce because of its loss or destruction. In case of loss or destruction the mortgagee could give a satisfaction piece, but it would be ineffectual to discharge the mortgage of record unless he could also deliver with it the mortgage itself. Anticipating that such a situation might arise the Legislature prescribed that he might apply to the court, setting forth the loss and the reasons why he was unable to produce the mortgage, and if those reasons were satisfactory the court was given power to order the mortgage canceled upon production of a certified copy of such order and the satisfaction piece alone, without the delivery of the mortgage itself to the recording officer. Without this provision a mortgagee whose mortgage had been lost or desti’oyed might not be able to receive payment, for the owner would be justified in refusing to pay over bis money on the satisfaction piece alone, unless it was accompanied by either the mortgage or an order dispensing with its production.

There does not seem to be any suspicious circumstance connected with the appellants’ application, and so far as appears everybody connected with the property understands that appellants are owners of the mortgage and that it is proper for the owners of the property to pay the amount to them upon their giving a discharge.

The order appealed from should be reversed and the application granted, directing the recording officer to discharge the mortgage upon production of a certificate of satisfaction, with the order required and dispensing with the production and delivery of the mortgage itself.

A public officer acting within what he deems to have been his duty is the nominal respondent, and under the circumstances no costs of this appeal should be granted.

Ingraham, Laughlin, Clarke and Soott, JJ., concurred.

Order reversed and application granted, without costs.  