PEOPLE ex rel. LEWKOWITZ v. FITZGERALD

PEOPLE ex rel. LEWKOWITZ v. FITZGERALD. N. Y. Superior Court, Special Term; January, 1893. .Recording deeds ; satisfaction of mortgage.] An executor, whose letters testamentary were issued in another State, is a “ personal representative ” within the meaning of section 28 of the Recording Act (1 R. S. 761; 8th ed. R. S. vol. 4, p. 2474), and may execute a satisfaction of mortgage, as therein provided, for the purpose of discharging upon record a mortgage made to testa- . tor. So held, where letters testamentary or of administration had not been issued in this State. Application for a mandamus requiring register to receive, file and record in his office a satisfaction of a certain mortgage. The mortgage was made by Isidojr Lewkowitz, the relator, to Joseph B. Hoyt, of Stamford, Fairfield County, Connecticut. Hoyt died in December, 1888, and on February 2nd, 1889, Thomas G. Ritch and others received letters testamentary from the probate court of Fairfield County, and qualified as such. The relator paid the executor Ritch the amount of the mortgage, and received a satisfaction piece executed and acknowledged by Ritch as executor, which he presented to the register of .N. Y. city for record, accompained by an authenticated certificate of the Connecticut probate judge of the appointment of Ritch as executor. The register declined to receive the satisfaction piece, on the ground that an executor appointed by the probate court of another State could not satisfy a mortgage recorded in this State. No letters testamentary or of administration had been issued in this State. The register’s duty as to the discharge of a mortgage upon record is prescribed by section 28 of the Recording Act (1 R. S. 761 ; 8th ed. R. S. vol. 4, p. 2474) as follows : “ Any mortgage that has been registered or recorded shall be discharged upon 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.” Mornay Williams (Dixon, Williams & Ashley, attorneys), for relator. William H. Clark, corporation counsel, for respondent. [MAJORITY — Dugro, J.] 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 meaning of .the term as used in section 28 of chapter III. of part II. of the Revised Statutes. There is no doubt that a voluntary payment to such an executor would be valid and discharge a debtor (Schluter v. Bowery Sav. Bank, 117 N. Y. 125 ; see, also, Doolittle v. Lewis, 7 Johns. Ch. 45 ; Stone v. Scripture, 4 Lans. 186 ; Vroome v. Van Horne, 10 Paige, 549; Parsons v. Lyman, 20 N. Y. 103), 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.