People ex rel. Gordon v. Butler — 135 A.D. 222

Majority

p. 222

The People of the State of New York ex rel. David Gordon, Respondent, v. Edmond J. Butler, as Commissioner of the Tenement House Department of the City of New York, Appellant.

First Department,

December 30, 1909.

Headnote

Real property — cloud on title — extinguishment of lien by foreclosure — public record not. canceled.

Where a judgment of foreclosure extinguishes liens of the city- of New York for violations of the Tenement House Act, tlie. record of the violations, an unpaid judgmént in favor of the city for the violation and the lis penclens filed in the ■ action by the city are in effect discharged, and are. not a cloud ■ upon the title. Hence, neither the .purchaser on foreclosure, nor his grantee is entitled to have the public record of the violations canceled or a note placed on the record stating that the violation, was canceled and dismissed.

Appeil by the defendant, Edmond J. Butler, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the qlérb of the county of New York on. the. 6th day of April, 1909, .granting the relator’s motion, for.a peremptory; writ of mandamus.'

John P. O’Brien, for the appellant.

Adolph Engel, for the respondent.

Appeal from an order directing the issuance of a peremptory writ of mandamus commanding the appellant, as commissioner of the tenement house department-of the city of. New York, to cancel and dismiss of record in the tenement house department a certain violation .designated as “ New Building Violation: No. 464-08.”

p. 223

The violation referred to was recorded in the tenement house department on the 11th of April, 1908, against certain premises then owned by one Wolkenberg, and consisted in his permitting a tenement house thereon to be occupied without having obtained from the department a certificate to the effect that the building conformed to the Requirements of the Tenement House Act, as required by section 122 of said act and section 1344 of the Greater Hew York charter. (See Laws of 1901, chap. 334, § 122; Laws of of 1901, chap. 466, § 1344, as amd. by Laws of 1903, chap. 439.) An action was thereafter brought against him by the city to recover the penalty provided by the statute for such violation and a notice of lis pendens was filed against the premises. (See Tenement House Act, § 126 et seq., as amd. by Laws of 1903, chap. 179.) Judgment was. recovered against him for $274.41, which was duly docketed in the county clerk’s office, no part of which has been paid. On the 29th of April, 1908, the tenement house department issued a 'certificate to the effect that the building on the premises conformed to the requirements, with a notice attached thereto that the violation for occupation before the issuance of the certificate was pending, and the premises have since been continuously occupied by tenants.

Prior to the lltli of April, 1908, the relator held a mortgage upon the premises, duly recorded, which he thereafter foreclosed, purchasing the premises himself upon the foreclosure sale. On the 20th of January, 1909, he conveyed the premises to one' Gronholz, agreeing to cause the violation recorded against the premises as above stated to be canceled or dismissed, Upon the appellant’s refusal to cancel of record such violation the relator applied for and obtained a peremptory writ of mandamus compelling the appellant, as commissioner of the-tenement house department of the city, to do so, and he appeals. ■

The city was made a party to the foreclosure action and the judgment there recovered extinguished any lien which it had upon the premises by reason of the judgment against Wolkenberg and the notice of lis pendens filed was in effect discharged. The relator claims that by reason of these facts, and since the violation no longer exists, and judgment for the penalty therefor has been recovered, he lias a right to have the record of the violation canceled.

The record of such violation was a public record made pursuant

p. 224

to law, and' the appellant had no power to destroy it. (Matter of Molineux v. Collins, 177 N. Y. 395 ; People v. Mills, 178 id. 274.) But it is claimed that all the relator desired, and all the writ issued in accordance with the order appealed' from required, was that the appellant should note on the record that the violation was canceled and dismissed. But the relator is not even entitled to this relief. The record as it now stands is not a lien upon the property or a charge against him or his grantee. The violation charged was the unlawful occupancy of the house before the certificate of the tenémént house department had been obtained. Snch certificate has since been obtained and the premises thereafter continuously occupied. How the record of the former violation can constitute any cloud upon the title to the property itself it is difficult to imagine. It is equally difficult to imagine where the court obtained its power to thus summarily direct the mutilation of the records.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.'

Ingraham, Clarice, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.