Indexes and Indexing. The index of libers of conveyances or mortgages is, however, no part of the record under this act, or its prototype,89 and a failure to index a recorded conveyance or a mistake in indexing, does not destroy its effect as notice.90 The purchaser duly delivering an instrument for record is not responsible for the errors of the clerk.91 For cognate cases see those cited under section 321 of this act.

89 Mutual Life Ins. Co. v. Dake, 1 Abb. N. C. 381; affd., 87 N. Y. 257. 90 Mutual Life Ins. Co. v. Dake, 87 N. Y. 257; Bedford v. Tupper, 30 Hun, 174; cf. Gibson v. Thomas, 85 App. Div. 243.

91 Simonson v. Falihee, 25 Hun, 570; Peck v. Mallams, 10 N. Y. 509, 519; cf. Muehlberger v. Schilling, 3 N. Y. Supp. 705; s. c., 19 N. Y. St. Rep. 1; Gibson v. Thomas, 85 App. Div. 243.

§ 316. Indexes. Each recording officer must provide, at the expense of his county, proper books for making general indexes of instruments recorded in his office, and must form indexes therein, so as to afford correct and easy reference to the books of record in his office. There must be one set of indexes for mortgages or securities in the nature of mortgages, and another set for conveyances and other instruments not intended as such mortgages or securities. Each set must contain two lists in alphabetical order, one consisting of the names of the grantors or mortgagors, followed by the names of their grantees or mortgagees, and the other list consisting of the names of the grantees or mortgagees, followed by the names of their grantors or mortgagors, with proper blanks in each class of names, for subsequent entries, which entries must be made as instruments are delivered for record. This section, so far as relates to the preparation of new indexes, shall not apply to a county where the recording officer now has general numerical indexes. A recording officer who records a conveyance of real property, sold by virtue of an execution, or by a sheriff, referee or other person, pursuant to a judgment, the granting clause whereof states whose right, title or interest was sold, must insert in the proper index, under the head " grantors," the name of the officer executing the conveyance, and of each person whose right, title or interest is so stated to have been sold. Formerly section 265, Real Property Law of 1896, chapter XLVI, General Laws:

§ 265. Indexes. Each recording officer must provide, at the expense of his county, proper books for making general indexes of instruments recorded in his office, and must form indexes therein, so as to afford correct and easy reference to the books of record in his office. There must be one set of indexes for mortgages or securities in the nature of mortgages, and another set for conveyances and other instruments not intended as such mortgages or securities. Each set must contain two lists in alphabetical order, one consisting of the names of the grantors or mortgagors, followed by the names of their grantees or mortgagees, and the other list consisting of the names of the grantees or mortgagees, followed by the names of their grantors or mortgagors, with proper blanks in each class of names, for subsequent entries, which entries must be made as instruments are delivered for record. This section, so far as relates to the preparation of new indexes, shall not apply to a county where the recording officer now has general

numerical indexes. A recording officer who records a conveyance of real property, sold by virtue of an execution, or by a sheriff, referee or other person, pursuant to a judgment, the granting clause whereof states whose right, title or interest was sold, must insert in the proper index, under the head "grantors," the name of the officer executing the conveyance, and of each person whose right, title or interest is so stated to have been sold.92 Section 265 was formerly chapter 199, section 1, Laws of 1843:

§ 1. The clerks of the several counties in this state, and the register of the city and county of New York, in those counties in which general indices of deeds and mortgages have not been made and preserved, according to the act passed April 18, 1826, shall provide proper books for making such general indices, and shall form indices therein in such manner as to afford correct and easy reference to the several books of record in their offices respectively. There shall be one book for deeds and another for mortgages. In each book there shall be made double entries, or two lists of names in alphabetical order. In one shall be set the names of the grantors or mortgagors, followed by the names of their grantees or mortgagees; and in the other, the names of the grantees or mortgagees, followed by the names of the grantors or mortgagors, leaving proper blanks between each class of names for subsequent entries; and in those counties in which indices were made under the said act of April 18, 1826, and have been preserved, the several clerks shall complete the same by bringing them down to the present time, and in either case, the said clerk shall keep the said indices complete by adding to the lists as deeds and mortgages shall be sent in to be recorded.93

Comment. It was stated under the preceding section that the. clerk's failure to index a recorded conveyance, or a mistake in indexing the same, does not destroy its effect as notice to subsequent purchasers.94

Indexes in New York and Brooklyn. The laws concerning indexes in the city of New York were embodied in the Consolidation Act.95 The existing law regulating the block system for the borough of Manhattan dates from 1887.96 It provides for indexes. The law regulating indexes and "block system" in the city and borough of Brooklyn dates from 1894.98

92 The last paragraph was new. See note of Commissioners of Statutory Revision to § 265, Appendix II, infra. Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 93 Repealed chap. 547, Lows of 1896. 94 Supra, p. 1015.

95 Laws of 1882, chap. 410, § 1752; Laws of 1888, chap. 321.

9 Laws of 1887, chap. 718; Laws of 1889, chap. 349, and see next note.

97

97 Laws of 1887, chap. 718; Laws of 1889, chap. 349, $$ 8, 9, 15, 17; amended, Laws of 1890, chap. 166; Laws of 1892, chap. 512, $$ 14, 15, 16, 17; Laws of 1893, chap. 536; see below, p. 1043.

98 Laws of 1894, chap. 365; amended, Laws of 1895, chaps. 71, 739, and by Laws of 1896, chap. 754; Matter of Kenna, 98 Hun, 178.

Indexes and Indexing. As the index of libers of conveyances or mortgages is no part of the record under this act, and those from which it is derived, a failure to index a conveyance, duly left for record, does not destroy the effect of the instrument, so entitled to be recorded, as notice.99

99 Droge v. Cree, 14 N. Y. Supp. 300; Howells v. Hettrick, 13 App.

Div. 366; supra, p. 10:5; infra, p

1040.

§ 317. Order of recording. Every instrument, entitled to be recorded, must be recorded by the recording officer in the order and as of the time of its delivery to him therefor, and is considered recorded from the time of such delivery. Formerly section 266, Real Property Law of 1896, chapter XLVI, General Laws:

§ 266. Order of recording. Every instrument, entitled to be recorded, must be recorded by the recording officer in the order and as of the time of its delivery to him therefor, and is considered recorded from the time of such delivery.1

Section 266 was formerly 1 Revised Statutes, 760, section 24:

24. Every conveyance entitled by law to be recorded, shall be recorded in the order, and as of the time, when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded, from the time of such delivery.2

Note on this Section. Similar statutes to 1 Revised Statutes, 760, section 24, were enacted at an early date in this State.3

What Constitutes a Recording under the Statute. A leaving of a conveyance with the clerk or register (at least, with instructions to record it and payment of fees) completes the record, and a failure on the part of the officer ought not to prejudice a party who has complied with the statute.5

Mandamus. When the right is clear a clerk or other recording officer may be compelled by mandamus to record an instrument duly entitled to be recorded.

The statute is mandatory, and the recording officer is under an official obligation to obey it.

1 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

2 Repealed, chap. 547, Laws of 1896.

3 Chap. 155, Laws of 1801; 1 K. & R. 478, 5; 1 R. L. 369, § 5; chap. 45, Laws of 1822; Jackson ex dem., etc. Van Valkenburgh, 8 Cow. 260.

4 Simonson v, Falihee, 25 Hun,

570; Mutual Life Ins. Co. v. Dake, 87 N. Y. 257, 264; Reid v. Town of Long Lake, 44 Misc. Rep. 370.

5 Droge v. Cree, 14 N. Y. Supp. 300.

6 People ex rel. Bennett v. Miller, 39 Hun, 463; People ex rel. Lewkowitz v. Fitzgerald, 29 Abb. N. C. 471; Matter of Wadsworth, 27 Misc. Rep. 264.