tion of the property affected thereby, and showing the loss, mutilation or destruction of the mortgage, or obliteration or removal of the signature or signatures thereon or therefrom, 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 can not 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, mutilated or destroyed, or that the signature or signatures have been obliterated or removed thereon or therefrom, 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 canceled of record in all counties where any of the lands 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 section 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 representatives 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.

Formerly chapter 490, Laws of 1903, as amended by chapter 289, Laws of 1907:

CHAP. 289.

AN ACT to amend the real property law, relative to discharge of mortgages in counties embraced in cities of the first class.

Became a law May 6, 1907, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section two hundred and seventy-a of chapter five hundred and forty-seven of the laws of eighteen hundred and ninety-six, entitled "An act relating to real property, constituting chapter forty-six of the general laws," as added by chapter four hundred and ninety of the laws of nineteen hundred and three, is hereby amended to read as follows:

$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, mutilated or destroyed, or upon which the signature or signatures are wholly obliterated or removed, 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 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 the 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, mutilation or destruction of the mortgage, or obliteration or removal of the signature or signatures thereon or therefrom, 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, mutilated or destroyed, or that the signature or signatures have been obliterated or removed thereon or therefrom, 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 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.

§ 2. This act shall take effect immediately.49

Comment. This section was not a part of The Real Property Law as originally passed. It was enacted by section 2 of chapter 490 of the Laws of 1903, and took effect on July first of that year. It expressly applied only to counties embraced in a city of the first class.50 In 1907 chapter 490 of the Laws of 1903 was amended by the act set out above under this section. The production and cancellation of satisfied mortgages and their safe-keeping in the recorder's office for ten years are calculated to prevent frauds in great cities.

Proceedings where Mortgage is Lost. The proceedings where the mortgage is lost, like all statutory proceedings, must be strictly pursued according to the statute.50

Mutilated Mortgages. This section, added to the Real Property Law of 1896, by the act of 1903 was a very troublesome piece of legislation, and gave rise to much discussion. It originally failed to provide for mutilated mortgages, in which case the mortgage could not be satisfied. This omission was corrected by the act of 1907.

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

50 Cities having a population of two hundred and fifty thousand, or

more, Article XII, Constitution of 1894.

50% Matter of Leckie, 131 App. Div. 216.

§ 323. Recording discharge of mortgage in counties embraced in cities of first class where property lies in more than one of such counties. In any case, however, in which the land affected by a mortgage which is to be discharged lies in more than one such county, and in which the mortgage has been recorded in more than one such county, the original mortgage need be filed in one of said counties only. For the discharge of such mortgage in the other county or counties where the land is located there shall be required to be filed, together with a properly executed satisfaction piece, a copy of the mortgage certified to by the recording officer of the county in which the original mortgage shall have been filed, together with a certificate of said recording officer, stating that the said mortgage has been discharged in his county by the filing of the original mortgage, and stating the time when the mortgage was so discharged. The said certificate shall be recorded and filed with the satisfaction piece in the other county, and a reference shall 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. The recording officer, however, shall not discharge the said mortgage without first having compared his record of it with the certified copy of the recording officer of the other county, so as to satisfy himself of the identity of the records in the two counties, and he shall keep the said certified copy on file for ten years the same as though it were the original mortgage. Formerly chapter 621, Laws of 1907:

CHAP. 621.

AN ACT to amend the real property law relative to the discharge of mortgages in counties wholly embraced within cities of the first class where the property involved lies in more than one of such counties.

Became a law Juiy 19, 1907, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Chapter five hundred forty-seven of the laws of eighteen hundred ninety-six, entitled "An act relating to real property, constituting chapter forty-six of the general laws," as amended by chapter four hundred