Real Property Law (L. 1896, ch. 547), §§ 232, 241, 249, 250.

chase-money mortgage who forecloses and bids in the premises acquires title thereto. DeGarmo v. Phelps, 176 N. Y. 455, reversing 64 App. Div. 590, 72 N. Y. Supp. 773.

§ 232. Disaffirmance of fraudulent acts by executors and others. (C. & G. Gen. Laws, p. 3336.)

A creditor's action to set aside a fraudulent conveyance must be brought, not for the creditor himself individually, but on behalf of all the creditors of the decedent. Matteson v. Palser, 173 N. Y. 404, modifying 56 App. Div. 91, 67 N. Y. Supp. 612.

§ 241. Recording of conveyances. (C. & G. Gen. Laws, p. 3344.)

A purchase-money mortgage given upon the sale of real estate is a prior lien to a mortgage subsequently executed by the grantee for the sole purpose of securing an antecedent debt, although the lastmentioned mortgage was recorded prior to the purchase-money mortgage. In such a case the holder of the mortgage given to secure the antecedent debt is not a purchaser for a valuable consideration within the meaning of the above section. O'Brien v. Fleckenstein, 86 App. Div. 140, 83 N. Y. Supp. 499.

A purchaser of lands across which a private road passes is not protected by the above section against the assertion of an easement obtained by the adverse use of such road, where it appears that at the time of the purchase the road was physically defined and apparent. Hey v. Collman, 78 App. Div. 584, 79 N. Y. Supp. 778.

§ 249. Acknowledgments and proofs in other states.Subdivision 5, amended by L. 1903, ch. 419, in effect May 7, 1903, as follows:

5. Any officer of the state in which the acknowledgment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, of which the certificate required by section two hundred and sixty-two shall be evidence.

§ 250. Acknowledgments and proofs in foreign countries.— Subdivision 2 amended by L. 1904, ch. 528, in effect April 29, 1904, as follows:

2. A consul-general, vice-consul-general, deputy-consul-general, vice-consul or deputy-consul, a consular or vice-consular agent, a consul or commercial or vice-commercial agent of the United States residing within the country; or a secretary of legation at the post, port, place or within the limits of his legation.

Real Property Law (L. 1896, ch. 547), § 257.

Subdivision 6, amended by L. 1903, ch. 98, in effect September 1, 1903, as follows:

6. If within the United Kingdom of Great Britain and Ireland or the dominions thereunto belonging, it may also be made before the mayor, provost or other chief magistrate of a city or town therein, under his hand and the seal of such city or town.

Subdivision 7, amended by L. 1904, ch. 528, in effect April 29, 1904, as

follows:

7. All acts of ambassadors, ministers plenipotentiary, ministers extraordinary, minister resident, chargé d'affairs, or secretary of legation, in taking the acknowledgment or proof of a conveyance of real property within the state, performed before the time when this act takes effect, are hereby confirmed, provided that the certificate of acknowledgment or proof is in the form required by the laws of this state.

Subdivision 8, added L. 1904, ch. 690, in effect September 1, 1904, as follows:

8. If within the states comprising the empire of Germany it may also be made before a judge of a court of record under the seal of such court or before a notary public under the seal of his office and the seal of the city or town in which the notary resides. (Added by L. 1904, ch. 690, in effect September 1, 1904.)

§ 257. When certificate must be under seal. Where a certificate of acknowledgment or proof is made by a commissioner appointed by the governor, or by the mayor or other chief magistrate of a city or town without the United States, or by a minister, chargé d'affairs, consul-general, vice-consul-general, deputy consul-general, vice-consul or deputy-consul, consular or vice-consular agent, or consul or commercial vice-commercial agent, or secretary of legation of the United States, it must be under his seal of office, or the seal of the consulate or legation to which he attached. All acknowledgments or proofs of deeds, mortgages or other instruments relating to real property, the certificates of which were made in the form required by the laws of this state, by a consul-general, vice-consul-general, deputy-consul-general, viceconsul, deputy-consul, consular-agent, vice-consular-agent, consul or commercial agent, vice-commercial agent, or secretary of legation of the United States prior to the time when this act takes effect,

Real Property Law (L. 1896, ch. 547), §§ 270, 270a.

are confirmed, but nothing herein contained shall affect any action or proceeding now pending in any court. (Amended by L. 1904, ch. 528, in effect April 29, 1904.)

§ 270. Recording discharge of mortgage.- A mortgage registered or recorded must be discharged upon the record thereof, by the recording officer, when there is presented to him the certificate signed by the mortgagee, his personal representative or assignee and acknowledged or proved and certified in like manner as to entitle a conveyance to be recorded, specifying that the mortgage has been paid, or otherwise satisfied and discharged. The certificate of discharge, and the certificate of its acknowledgment or proof must be recorded and filed; and a reference must be made to the book and page containing such record in the minute of the discharge of such mortgage, made by the officer upon the record thereof. (Amended by L. 1903, ch. 490, in effect July 1, 1903.)

§ 270-a. Recording discharge of mortgage in counties embraced in cities of first class. In counties wholly embraced in a city of the first class, no mortgage shall be discharged of record, unless in addition to the certificate provided and required by the preceding section, there shall be presented to the recording officer for cancellation the original mortgage, or a certified copy of an order made and entered as hereinafter provided. The said officer shall, at the time of the discharge of said mortgage, cancel said original mortgage by effacing the signatures thereto, without obliterating the same, and shall file the same in his office and keep the same so filed for the term of ten years. If for any reason said mortgagee, his personal representative or assign cannot produce said original mortgage, the said officer shall not discharge said mortgage until there shall be delivered to him a certified copy of an order made and entered as hereinafter provided, which order shall be recorded and filed with the certificate of discharge, or the substitute for said certificate of discharge hereinafter referred to, and a reference must be made to the book and page containing such record in the minute of the discharge of such mortgage, made by the officer upon the record thereof. Where the mortgage shall have been lost or destroyed, any person having any interest in securing the discharge of the same may apply to the supreme court or the county court in, or of the county in which property affected by the mortgage, or any part thereof, is situated, upon a petition

Real Property Law (L. 1896, ch. 547), § 270a.

duly verified, containing the name and address of the owner of the property covered by the mortgage, the name and address of the owner of the bond and mortgage, to the best of petitioner's knowledge and belief, and the owner thereof as appears of record, a full description of the mortgage and of any assignments thereof, that may appear upon the record, including the names of the mortgagor, mortgagee, assignor, assignee, date, amount, and the place, book, page and time of record of said mortgage and any assignments thereof, and a description of the property affected thereby, and showing the loss or destruction of the mortgage, and the interest of the petitioner in the property or the mortgage, for an order dispensing with the production of the said mortgage and directing the discharge thereof. Eight days' personal notice of the application for such order shall be given to the then present owner of the real estate and the mortgagor, the mortgagee, his or their personal representatives, heirs, successors or assigns as the case may require, except that where any of the parties upon whom service is herein. required to be made cannot with due diligence be personally served, the court, to which the petition is presented, may direct such mode of service as may appear proper. If sufficient cause be shown, the court may issue an order to show cause upon the petition returnable in less than eight days. Upon the return day of such notice or order to show cause, the court, upon due proof of service of the notice, or order to show cause, upon the parties above specified, and on further proof of the identity of the person presenting the petition, shall inquire, in such manner as it may deem advisable, into the truth of the facts set out in the petition, and upon proof satisfactory to the court that said mortgage has been lost or destroyed and as to the identity of the mortgagee, his personal representatives or assigns and such other proof in relation thereto as to the court may seem desirable, the court shall make an order dispensing with the production of the mortgage and directing its cancellation of record, as hereinabove provided. In case the mortgagee, his personal representatives or assigns shall not appear in court upon the return day of said notice or order to show cause, or shall refuse or neglect, if present, to give the certificate for discharge above specified, the court may direct the amount due upon said bond and mortgage to be paid to the officer specified by law to hold court funds and moneys deposited in court in the county wherein the mortgaged premises are situated in whole or in part and the mortgage to be cancelled of record in all counties where any of the lands

Real Property Law (L. 1896, ch. 547), §§ 271, 276, 284.

affected by said mortgage are situated upon the production of a certified copy of the order and the receipt of such officer showing that the amount of said mortgage has been deposited with him, which receipt shall be a substitute for the certificate of discharge above specified. If in the proceedings had under and in pursuance of this act it shall appear to the satisfaction of the court that the principal sum and interest due upon said mortgage, or the bond accompanying the same has been fully paid, then the said deposit of money hereinabove provided for shall be dispensed with. The money deposited shall be payable to the mortgagee, his personal representative or assigns upon an order of the supreme or county court directing the payment thereof to him, made upon such evidence as to his right to receive the same, as shall be satisfactory to the court. (Added by L. 1903, ch. 490, in effect July 1, 1903.)

§ 271. Effect of recording assignment of mortgage. (C. & G. Gen. Laws, p. 3357.)

A mortgagor, even after the recording of the assignment of the mortgage, is protected in making payments to the mortgagee until he receives notice of the assignment or of facts sufficient to put him on inquiry as to the continuance of the mortgagee's title. If he receives notice of facts which would enable him, if he made the requisite inquiry, to ascertain the truth, then he is bound to make such inquiry, and if he omits to do so, he is chargeable with bad faith and is not protected in thereafter making payments to the mortgagee. In the absence of such notice the fact that the mortgage was not in the possession of the mortgagee at the time that the payments were made, does not affect the validity of the payments. Barnes v. L. I. Real Estate Exchange and Investment Co., 88 App. Div. 83.

§ 276. Actions to have certain instruments cancelled of record. (C. & G. Gen. Laws, p. 3358.)

Building contract not to be recorded. A contract for the alteration of a building and containing a clause that in lieu of payment a second mortgage upon the premises should be taken, is not an equitable mortgage, nor is it an instrument by which any estate or interest in real estate is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected. It is, therefore, not entitled to be recorded, and, if recorded, may be cancelled of record under the above section. Davidson v. Fox, 65 App. Div. 262, 73 N. Y. Supp. 533.

$284. When father inherits. (C. & G. Gen. Laws, p. 3360.) Application of section considered, see Righter v. Ludwig, 39 Misc. 416, 80 N. Y. Supp. 16.