In the Matter of the Application of EMMA L. BLACK, Respondent, for an Order Canceling and Discharging a Certain Mortgage of Record. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.
APPEAL by the Equitable Life Assurance Society of the United States from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of April, 1912, directing payment of a sum due upon a mortgage to the chamberlain of the city of New York and upon such payment directing the register of the county of New York to mark said mortgage canceled and discharged of record.
Charles W. Pierson of counsel [William H. P. Oliver and L. A. Doherty with him on the brief], Alexander & Green, attorneys, for the appellant.
Samuel Phillips Savage of counsel [Curtis, Mallet-Provost & Colt, attorneys], for the respondent.
The respondent alleges in her petition that she is the owner of certain described real estate in the city of New York and that on or about November 2, 1899, she duly executed her bond for $29,250 and a mortgage securing the same, covering said premises, to one Daniel R. Kendall, which was duly recorded; that by certain assignments duly recorded said bond and mortgage were assigned to the Equitable Life Assurance Society; that a payment was made on account of the principal, leaving a balance of principal due of $20,000; that on March 12, 1912, the petitioner's attorneys 'presented to said Equitable Life Assurance Society of the United States, pursuant to the provisions of chapter 574 of the Laws of 1911, a satisfaction piece certifying that the mortgage had been paid, and consenting that it be discharged of record, and tendered $20,286.12 lawful money of the United States in legal tender, being the sum due upon said date for principal and interest upon said mortgage, together with the sum of fifty cents, being the fee allowed by law for taking the acknowledgment of a deed; that your petitioner's said representative then demanded that said satisfaction piece be executed and delivered, together with said mortgage; that C. J. Martin, the deputy comptroller of said Equitable Life Assurance Society of the United States, being the officer to whom said tender was made on behalf of said Company, refused to surrender said mortgage or the bond which the same was given to secure, stating that the same had been destroyed by fire, and that he was not able to deliver the same.' Wherefore, she prayed for an order canceling and discharging the mortgage of record and directing that the sum tendered be paid to the chamberlain of the city of New York, and upon depositing the said sum with the chamberlain the register be directed to mark said mortgage canceled and discharged of record.
Upon this petition an order to show cause why the relief asked should not be granted was served upon the Equitable Life Assurance Society. Upon the return to the order an affidavit of Charles J. Martin, deputy comptroller of said society, was presented in which he averred that the society was the owner of the bond and mortgage described; that it had never been assigned by said society or in any other manner transferred or disposed of; 'That on the 12th day of March said Society was ready and willing to accept payment of the amount due on said bond and mortgage at that date, to wit, the sum of $20,286.12, and to execute and deliver to any person paying the same a proper certificate of satisfaction certifying to the payment thereof; that the said Society was then and is now unable to deliver the original bond and mortgage for the reason that the same have been destroyed by fire, as will more fully appear by the annexed affidavits of Alfred Taggard and John B. Russell; that the said petitioner herein has at no time tendered to said Society the amount due on said bond and mortgage, or offered to pay said amount due to said Society, except upon the condition that said bond and mortgage be simultaneously surrendered to petitioner, which petitioner has always well known this Society was unable to do.'
The affidavit of Russell set forth that for twenty years last past he has been bookkeeper of the bond and mortgage department of the Equitable Life Assurance Society; that the society, to the deponent's knowledge, had said bond and mortgage in its possession at the time of the fire which destroyed the Equitable Building in the city of New York on January 9, 1912; that to the best of deponent's recollection and belief said bond and mortgage were at the time of said fire deposited in the safe in said bond and mortgage department where papers in current use were kept; that deponent has examined the mortgage records and files of said society since the fire and contained in the society's mortgage vault and that the bond and mortgage described in said petition cannot be found; that deponent has many times examined the ruins of the Equitable Building in an endeavor to find the safe above mentioned in which said bond and mortgage is believed to have been at the time of the fire, and that no trace of said safe or of its contents has been
found; that deponent has been informed by the firemen and building experts who have examined said ruins that said safe was in that part of the Equitable Building which experienced the greatest heat during said fire and where destruction was most complete.
Taggard's affidavit avers that for fourteen years last past he has had charge of the mortgage records of said society; that prior to the 9th of January, 1912, the society's mortgages were kept in a large vault built in the society's building at 120 Broadway, to which deponent had access; that shortly before the 9th of January, 1912, deponent removed from said vault the bond and mortgage described in said petition in order that a satisfaction piece or assignment of said bond and mortgage might be prepared in compliance with a notice from the owner of the mortgaged premises that payment of said mortgage would shortly be made; that said bond and mortgage and the accompanying papers were placed by petitioner in a safe in the bond and mortgage department of the society, where it was the society's custom to keep papers in current use or papers which might have to be examined or delivered on short notice; that to the best of deponent's recollection and belief said bond and mortgage and accompanying papers were deposited in this safe at the time of the fire which destroyed the Equitable Building; that deponent has carefully examined all of the mortgage files of the society contained in its vault, and that said bond and mortgage were not among them; that deponent has many times examined the ruins of the Equitable Building in an endeavor to discover the said safe, and that said safe and its contents have never been found, and are believed to have been totally destroyed by said fire.
The controversy before this court is highly technical in its character, and is whether section 322 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) [a1] or section 333 of said law, added by chapter 574 of the Laws of 1911, applies to the facts presented.
Section 322 provides as follows: 'In counties wholly embraced in a city of the first class no ...