Henry Van Schaick, Respondent, against Franz Sigel, Appellant

Henry Van Schaick, Respondent, against Franz Sigel, Appellant. (Decided December 6th, 1880.) Where the register of the city of Hew York makes and certifies to an erroneous return to a written requisition for a search in his office, he is guilty of “ misconduct or neglect in office,” within section 549 of the Code of Civil Procedure, and is therefore liable to arrest in an action to recover damages for such erroneous return, although he did not personally make the search or personally certify, and although the search was in fact made by one of his searchers who was designated to make it by the party making the requisition. '■ 1 Where a plaintiff has been damnified by a wrongdoer, he must see to it that his loss is not swollen by any act of omission or of commission on his part; but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrongdoer. Appeal from a judgment of the court, entered upon findings by the judge on a trial without a jury. This action was brought to recover damages alleged to have been sustained by the plaintiff from the negligence of the defendant, as register of the city and county of Hew York, in making an erroneous return to a requisition for a search in his office. The requisition was made by the plaintiff’s attorney in February, 1874, for a search, amongst other things, for mortgages of record upon or affecting a certain piece of real property in the city of Hew York, made by George H. Scott, from January 20, 1874, to the date of the return. Upon the requisition the plantiff’s attorney wrote : “ De Grove. Wanted immediately,” thereby intending to inform the register that he deáired one De Grove, an experienced searcher in the office, to make the search, and immediately. The requisition was accordingly delivered to De Grove, who by mistake omitted to find and note upon the return a mortgage of George H. Scott to Edmund Coffin, Jr., for $2,500 and interest, recorded January 21, 1874. The return, after stating certain conveyances, but not the Coffin mortgage, concluded as follows: “ Nothing else found. D. Lennox, Ass’t. Dep. Reg.” The defendant had personally nothing to do with the matter. Relying upon the correctness of this search and certificate, by which it appeared that a proposed loan from the plaintiff to said George H. Scott upon the security of a mortgage on the said property would be a first mortgage on the premises, the plaintiff loaned to Scott the sum of $4,000, as security for which Scott executed a mortgage of the property to the plaintiff, which was immediately recorded in the register’s office, February 28, 1874. Neither the plaintiff nor his attorney had, before the making of this loan, any notice of the prior mortgage to Coffin. In October, 1875, the plaintiff commenced an action of foreclosure of his mortgage against George H. Scott and his wife, and on December 17,. 1875, obtained a judgment, but proceeded no further therein. January 20,1876, Edmund Coffin, Jr., commenced a foreclosure action on his mortgage, making the plaintiff in this action a party defendant therein, and on May 1, 1875, a judgment of foreclosure was entered, under which the property was sold, and was purchased by the plaintiff in this action for $4,000. There remained, after satisfying the judgment in favor of Coffin, a surplus of $1,530.11, which was applied to the payment of the plaintiff’s mortgage. The complaint in the action alleged that through the negh gence, carelessness and unskillfulness of said defendant and of his clerks and searchers, the said mortgage to Edmund Coffin, Jr., was omitted from the return. This allegation was denied by the answer. Upon the trial a jury was waived by consent. At the close of the plaintiff’s evidence the defendant moved for a dismissal of the complaint, which was denied. He then moved for an order that the complaint be amended by striking out of it all allegations of personal negligence, carelessness or unskillfulness on the part of the defendant, and particularly by amending the allegation above referred to, so that the clause quoted would read : “ through the negligence, carelessness and unskillfulness of the defendant’s clerks and searchers, the said mortgage,” &c.; which motion was also denied. The judge decided in favor of the plaintiff (See opinion reported 58 How. Pr. 211); and upon the judge’s findings judgment for the plaintiff was entered. From the judgment the defendant appealed. Edward Salomon, for appellant. The court erred in refusing to nonsuit the plaintiff, in denying the motion to amend the complaint so that it conform to the facts proven in the case, and in finding, without any evidence tending to sustain it, and contrary to the admission of the plaintiff’s comisel at the trial, and the uncontradicted testimony of the case, that through the negligence of the defendant personally the Coffin mortgage was omitted from the search. By the allegation charging the defendant with personal official negligence, the complaint was made one to recover damages for “ neglect in office,” under § 549 of the Code of Civil Procedure, which makes the defendant liable to arrest in an action to recover damages for “ misconduct or neglect in pffice.” That section does not contemplate a case like this, where the defendant is personally free from all blame, but where a statute makes him liable for an error or mistake of a subordinate. The duty to cause searches to be made is a statutory duty. If no statute existed on the subject, and yet the defendant had, for a compensation, undertaken to have the searches made, he would be liable for any mistake of his subordinate in an action on the contract, not in an action of tort (distinguishing Adsit v. Brady, 4 Hill, 630 ; Hover v. Barkhoof, 44 N. Y. 113). Under the statute and the existing facts no action of tort could have been maintained at common law, but only an action of debt on the statute, for a statutory liability. The searcher, De Grove, who made the mistake, was selected by the plaintiff to make the search, and was therefore as much the plaintiff’s as the defendant’s agent, and the defendant is therefore not liable for his mistake (Blake v. Ferris, 5 N. Y. 48; Pack v. The Mayor, &c., 8 N. Y. 222, 225; Kelly v. The Mayor, &c., 11 N. Y. 432, 435, 436; People v. Campbell, 82 N. Y. 247). Plaintiff’s agent, when informed of the existence of the prior mortgage, should have notified the defendant at once of the defect in the search, so that the latter might have protected himself against further costs and damages, which he could have done by paying off the Coffin mortgage and the small amount of costs which had then accrued. The plaintiff cannot charge the defendant with the further costs in that foreclosure suit, and the amount of the judgment should be accordingly reduced (Sedgwick Damages, 105-107; Milton v. Hudson River Steamboat Co., 37 N. Y. 210; Wakeman v. Gowdy, 10 Bosw. 208). W. A. Beach, for respondent. It is a mistake to suppose that a principal is not answerable, i/n tort, for want of skill, neglect, or fraud of his servants while engaged in the line of their employment (Lee v. Village of Sandy Hill, 40 N. Y. 453, note; Craig v. Ward, 3 Keyes, 387; Bennett v. Judson, 21 N. Y. 238; Wakeman v. Dalley, 51 N. Y. 27; Hathaway v. Johnson, 55 N. Y. 93, 96; Claflin v. Frank, 8 Abb. 412). Public officers, acting ministerially, are liable for negligence or unskillfulness in discharge of their duties (Robinson v. Chamberlain, 34 N. Y. 389; Olmsted v. Dennis, 77 Id. 378). So, also, an administrative officer is chargeable with the misconduct or negligence, in the scope of their employment, of those employed by or under him, voluntarily or privately, and who are paid by, or responsible to him (Bassett v. Fish, 75 N. Y. 303; Shepherd v. Lincoln, 17 Wend. 250). This doctrine of liability is applicable to an officer employed to make search for liens (Morange v. Mix, 44 N. Y. 315). The defendant is liable, in the form of this action, under the act of July 21,1853 (L. 1853, p. 1141). Under a similar act applicable to the clerk of the city and county of Hew York, 'his liability for a neglect of the same nature as that charged against the defendant, has been adjudged (Kwnball v. Gonolly, 3 Keyes, 57). There is no plausible ground for the proposition that the searcher, De Grove, who made the mistake, was selected by the plaintiff as such, and he was, therefore, as much the plaintiff’s as the defendant’s agent. Besides, it was the deputy register, and not De Grove, who certified to the correctness of the search. If necessary, negligence by the latter officer might well be argued. Plaintiff was under no obligation to purchase the Coffin mortgage, or to sell under his decree, subject to that lien. Had he done so, it does not appear that the injury he sustained would have been modified. But the case does not fall within the doctrine, requiring one, suffering injury from the act of another, to make reasonable effort to diminish its extent. The principle imposes no obligation to incur any hazard, or assume unusual risks (Roberts v. White, 73 N. Y. 375, 380). [MAJORITY — Van Hoesen, J.] Van Hoesen, J. The search, which proved to be erroneous, was made by De Grove, an employe of the defendant, and its correctness was certified to by Lennox, the assistant deputy register. Ho question as to the liability of the defendant for the damages caused by the mistake exists, and the principal point mooted, is, do these facts make the defendant guilty of misconduct or neglect in office? The question is important, because the defendant’s liability to arrest in this action depends upon the answer. The language of the statute seems to me to leave no doubt upon, the point. It declares that “ It shall be the duty of the register to cause every written order or written requisition for search to be made without delay, and to be certified and ready for delivery within twenty days from the receipt of such written order or requisition by him, and he shall be liable for all damages and injuries resulting from errors, inaccuracies or mistakes in his return so certified by him.” It is also provided that his deputy and assistant deputy shall have the same powers as a deputy county clerk. It is obvious that it is the duty of the register to cause the search to be made and certified. The search must be correct, for there is a penalty imposed for any mistake or error. If it be the duty to make the search correct, any failure in that respect is a neglect of duty. The act provides that the requisite machinery shall be placed in the register’s hands, for he is empowered to appoint searchers. He need not personally search, or personally certify, for he may cause the work to be done, but his is the liability if there be inaccuracy, error or mistake. He has the unrestricted choice of his subordinates, and, like a sheriff, he should answer for the doings of his assistants in the line of their duty. The principle .which would excuse the defendant from arrest, would extend to the case of every officer whose duties are partially performed by a deputy, or by clerks, for though the certificate should be given by his own hand, the officer could truly say in most cases, that he relied upon some assistant for information as to the matters to which he certified, and that personally he knew nothing of the error for which the injured party sought to hold" him answerable. It must be held to be the duty of the register to know what he certifies to be true, and to be a neglect of duty to certify to an error (Pickard v. Smith, 10 G. B. N. S. 470). A suggestion to the register that the plaintiff would be glad to have the requisition given to De Grove (for the pencil memorandum amounted to nothing more than that), does not relieve the defendant from liability. De Grove was a searcher appointed by the defendant, and steadily engaged in the office, and in that most essential respect this, case differs from that of De Moranda v. Dunkin (4 Term, 119), where the sheriff was. held not to be responsible for the act or 7a special bailiff appointed at the instance of the plaintiff. It is said that when the plaintiff became aware that the search was incorrect, he was bound to communicate that fact to the defendant, that the latter might have bought up the Coffin mortgage before the costs of foreclosure had been added to it. It is undoubtedly true that the plaintiff was under obligation to make reasonable exertions to prevent the increase of the damages likely to fall upon himself, and thus incidentally to protect the defendant; but it was not his duty to go one step further. He was not bound to know that the defendant could or would-buy or settle the Coffin mortgage, and he is not to suffer because he did not think of that plan. Where a plaintiff has been damnified by a wrongdoer, he must see to it that his loss is not swollen by any act of omission, or of commission, on his part, but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrongdoer. The opinion of Judge Labbemobe states the facts and the law so clearly that I think it unnecessary to say more. The judgment should be affirmed, with costs. Chaeles P. Daly, Oh. J., and J. E. Daly, J., concurred. Judgment affirmed, with costs.