Charles E. Hartwell, as Executor, etc., of Frank W. Lobdell, Deceased, Respondent, v. Francis Riley, Appellant

Charles E. Hartwell, as Executor, etc., of Frank W. Lobdell, Deceased, Respondent, v. Francis Riley, Appellant. County clerk—hisfailureto index a lis pendens under'the names directed—it is operative as if so indexed r-^his liability to a mortgagee acting on a search made by his successor. ■ A person about to take a mortgage upon property of which the proposed mortgagor is in possession, who obtains from the county clerk of the county in which the premises are situated an-official search showing that there is no incumbrance upon or defect in the title, is entitled to rely upon the search, in the absence of actual notice of facts impeaching it. A notice of lis pendens entitled “ Eva M. Southwick against Dewitt C. Jones and 'Margaret Jones, his wife,” filed in an action to set aside a deed from the plain- , tiff to Dewitt 0. Jones, and a deed from the latter to Margaret Jones, was directed to be indexed “ against all the defendants,” but was indexed by the deputy county clerk, in the absence of the county clerk, as follows: “Jones — Dewitt 0. & wf.,” the name Margaret Jones not being indexed. Subsequently Margaret Jones executed a mortgage upon the property, the-mortgagee relying upon a search made by the county clerk’s successor in office, which did not disclose the filing of the lis pendens against her. ■ The action in which the Us pendens was filed resulted in a judgment setting aside the deeds in question as fraudulent, in consequence of which and of the insolvency of Margaret Jones, the mortgagee lost the mortgage debt. Held, that the notice of lis pendens became operative in favor of the plaintiff in the action from the time that it was filed without reference to the clerk’s performance of his duty to index the names of the defendants named therein; That the county clerk in office at the time the lis pendens was filed was liable' for the negligence of his deputy in failing to index it in the manner required by section 1672 of the Code of Civil Procedure; ’ That the clerk who made the search had a right to believe that his predecessor had done his duty and that the letters “ wf.” did not refer to Margaret Jones, the grantee in the deed from Dewitt C. Jones, it not appearing that there was anything in the deed which indicated that the grantee was the wife of the grantor. Quaere, if the county clerk who made the search was negligent, whether the mortgagee would be chargeable therewith. Appeal by the defendant, Erancis Riley, from a judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 2d day of June, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the Rensselaer Trial Term. The action was brought to recover damages for the failure of the defendant, as county clerk, 'to index a notice of pendency of an action. On January 29,1896, the plaintiff’s testator loaned to Margaret Jones $3,000,. upon her bond secured by her mortgage upon certain real estate in the village of Lansingburgli then in her possession, the deed of which to her from Dewitt C. Jones was recorded on October 27, 1892. The mortgage was recorded on February 3, 1896. The loan was negotiated through Mr. Kirsop, whose business was in part the negotiation of loans and real estate. Mrs. Jones, through her son, applied to Mr. Kirsop to obtain the loan. The latter went and looked over the property, and afterward saw Mr. Lobdeil and went with him and looked over the property. Up to that time Mr. Lobdeil did not know Mrs. Jones. After looking over the property Mr. Lobdeil said that he would take the loan, and also stated that he wanted a county clerk’s search. Thereupon Mr. Kirsop, by himself or his attorney, procured the bond and mortgage to be drawn and duly executed, and obtained a county clerk’s search from Mr. Yan Alstyne, the then county clerk, and placed these papers in the hands of Mr. Lobdeil for examination. After two or three days the loan was closed, the money paid to Mrs. Jones, Kirsop receiving from her or her son payment for his charges, including the amount paid'for the search. Nothing was said by Mrs. Jones or her son to Lobdell or Kirsop_ about there being any dispute as to the title. The search showed a clear title, coming to Margaret Jones from Dewitt 0. Jones by deed dated October 26, 1892, and recorded October 27, 1892, and to Dewitt 0. Jones from Eva M. Southwick by deed dated August 1, 1891, and recorded August 3, 1891. It appears that on December 13, 1893, Eva M. Southwick commenced in the Supreme Court an action against Dewitt O. Jopes and Margaret Jones to set aside as fraudulent the deed from her to Dewitt 0. Jones, and the deed from the latter to Margaret Jones. The summons, complaint and notice of pendency were filed on December 13,1893. The defendants*therein appeared and answered separately. The case was tried and judgment rendered in favor of the plaintiff therein setting aside those deeds. This judgment, was entered July 1, 1898, and under it the plaintiff therein was after-wards put into possession of the premises. ' At the time of .the filing of the notice of pendency, the defendant Riley was county clerk of Rensselaer county. The notice was entitled “ Eva M. Southwick against Dewitt 0. Jones and Margaret Jones, his wife.” It described the two deeds, and at the foot of the notice there 'was a direction, subscribed by the plaintiff’s attorneys, “ Index against all defendants.” The notice was recorded in the proper book. The entry upon the index, as against the defendants therein, was as follows : “ Jones — Dewitt C. & wf.” .There was no index against the name Margaret Jones. The entry upon the index was in fact made on the morning of December fourteenth by Mr. Greenman, the deputy county clerk.. Mr. Riley was absent from the county clerk’s office on the thirteenth and fourteenth. Margaret Jones is insolvent. Lobdell died in March, 1897. At the close of the- evidence the court held that there was no index against Margaret Jones; that the defendant was liable for the neglect of his deputy; that the fact, if true, that the clerk Van Alstyne who made the search upon which Lobdell acted might, by the exercise of proper care and diligence, have discovered the error of his predecessor would not relieve the defendant, and that upon ■ the undisputed facts -the plaintiff 'was entitled to recover tlie amount of his loss, being the amount of the mortgage. William J. Roche and H. D. Bailey, for the appellant. Joseph C. Behan and John H Peck, for the respondent. [MAJORITY — Merwin, J.:] Merwin, J.: The- notice of pendency in question was filed in pursuance of the provisions of section 1670 of the Code of Civil Procedure. The effect of such notice is provided for by section 1671. That. states that, from the time of so filing the notice, the pendency of the action is constructive notice to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed as prescribed in the following-section; and that a person whose conveyance or incumbrance is subsequently executed or recorded is bound by all proceedings taken in the action, after the filing- of the notice, to the same extent as if he were a party to the action. By' section 1672 it is provided that the county clerk, with whom such notice is filed, must immediately record it in a book kept in his office for that. purpose and index it to the name of each defendant specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff. Under these provisions, it would seem that the notice of pendency becamp operative in favor of the plaintiff in the action from the time .it was filed, without reference to whether the clerk performed his duty to index (Mutual Life Ins. Co. v. Dake, 87 N. Y. 257; Bedford v. Tupper) 30 Hun, 174); and if so, the subsequent mortgage was destroyed by the judgment. The loss in this way to the plaintiff or his testator is hardly disputed. The question then arises whether the defendant is liable for the loss. The d.uty imposed by section 1672 upon the defendant as county clerk was not performed. The notice, was not indexed against the name of “Margaret Jones.” As a result of this failure the clerk, Van Alstyne, did not find and enter "upon the search, upon which Lobdell acted, the pendency of the action to set aside the deed to Margaret Jones. The loss to Lobdell was the natural result of the fault of the defendant. It is, however, claimed by the defendant that the trial court erred in holding that he-was liable for the acts.or omissions of his deputy. The duty to be performed was ministerial and was in the ordinary course of business in the office. In such a case liability attached to the' defendant for the act or omission of his deputy. (2 S. & R. Neg. [5th ed.] § 590; Welddes v. Edsell, 2 McLean, 366; McNutt v. Livingston, 7 Smedes & M. [15 Miss.] 641.) The case of Van Schaick v. Sigel (58 How. Pr. 211; affd., 60 id. 122) is in the same direction, though based somewhat on the provisions of a special statute. The general statute which authorizes the county clerk to appoint a deputy also provides that the deputy holds his position during, the pleasure of the clerk. (The County Law, § 162, .chap. 686, Laws of 1892.) The trial court did not, we think, err in treatingthe act or omission of the deputy as the act of omission of the clerk. But the defendant says that he owed no duty to the subsequent mortgagee for the non-performance of which the plaintiff as the representative of the -mortgagee has a cause of action against him. “It is the established rule,in this State that where an individual sustains an injury by misfeasance or nonfeasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured.” (Bryant v. Town of Randolph, 133 N. Y. 70, 75.) If a public. officer,1 charged with the performance of ministerial duties, fails to discharge those duties with reasonable skill and care, he is liable for the damages resulting from such failure to. one Specially interested in the discharge of such duties. • (Olmsted v. Dennis, 77 N. Y. 378.) Within these principles, I see no good reason why there is not a basis for liability against the defendant. The defendant asked to go to the jury on the question whether, there was any negligence or want of care upon the part of plaintiff’s testator which contributed to the result. Mr. Lob.dell, before taking the mortgage, required a county clerk’s search to be obtained. ■ It was obtained and exhibited to him. It was an official search and showed that there was no incumbrance or defect in the title. , The mortgagor was in' possession. The mortgagee was not called upon to make further investigation. He had a right to rely upon the search, in the absence of actual notice of the pendency of the action. Mo such notice appears, b.ut rather to the contrary. But it is said that the clerk, Van Alstyne, was negligent in hot discovering the defendant’s mistake and that the- plaintiff’s testator was chargeable with such negligence. I.doubt the latter propósition, but, assuming it to be true, Yan Alstyne had a right to believe that his predecessor had done his duty. He had a right to .believe that the letters “ wf.” did not mean or refer to the grantee, Margaret Jones, in the deed which was on record from Dewitt C. Jones prior to the filing of the notice. It does not appear that in that deed there is anything that indicates that the grantee is the wife of the grantor. Ho good reason is apparent for charging Lobdell with the knowledge that the mortgagor had of the pending suit. The limit of two years in the search undoubtedly was understood to refer only to mechanics’, liens, and the point that notices of pendency were to be looked for for only two years is not well taken: They were in fact looked for for a period prior to the one in question. We find no reversible errors in rulings upon evidence, or in refusing requests to go to the jury. All concurred. Judgment affirmed, with costs.