O'Loughlin v. Billy — 95 A.D. 99

Majority

p. 99

John J. O’Loughlin, Respondent, v. Mary Billy, Appellant.

Headnote

Attorney and client —possession of a bond and mortgage and an executed but unacknowledged satisfaction piece thereof— it is presumptive evidence of authority to receive payment thereof.

The possession of a bond and mortgage by the mortgagee’s attorney, by whom the loan was originally negotiated, who concededly had authority to receive payment of the interest due on the bond and mortgage, is sufficient to invest the attorney with apparent authority to collect the principal of such bond and mortgage and to estop the mortgágee from denying that the attorney possessed such authority.

The fact that the mortgagee executed and delivered to the attorney an unacknowledged satisfaction of the mortgage, is strong evidence that the attorney had actual authority to collect the principal of the mortgage, and, in the absence of some satisfactory explanation, must be deemed conclusive.

Appeal by the defendant, Mary Billy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of October, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, decreeing the cancellation and discharge of a'«mortgage on certain real property.

August W. Glatzmayer [George A. Knobloch with him on. the brief], for the appellant.

I. Newton Williams, for the respondent.

The action is brought to obtain the cancellation and discharge of a mortgage on certain real estate owned by the plaintiff. The bond to which the mortgage is collateral was paid by the plaintiff after maturity to the attorney by whom the loan was originally negotiated, and the question litigated was whether he had authority, actual or apparent, to receive the payment as the defendant’s agent. The defendant claimed that the bond and mortgage were delivered to her shortly after they were executed; that they remained in her possession continuously from that time until the trial; that although the attorney collected and paid her the interest he was not invested bv her with authority to receive the principal; and that he neve

p. 100

r paid, the principal to her, nor did she know that he had received it until shortly before the commencement of the action.

The learned trial court has found, upon conflicting evidence, not only that the attorney had possession of the bond and mortgage at the time of the payment id question, but that he also had a satis^ faction piece executed by the defendant, but not acknowledged, which papers were delivered to him by her with actual authority to collect the principal sum. The plaintiff testified that these three papers were, given to him by the attorney at the time the payment was made, and that they were afterwards returned at the attorney’s request in order that the satisfaction might be acknowledged and filed. He further testified that he endeavored to get them some months later, but was told by the attorney that he would keep them. The certificate of satisfaction was subsequently found among the attorney’s papers, but the bond and mortgage were at that time and ever since in the possession of the defendant.

The possession of the bond and mortgage by the attorney at the time of the payment would suffice to invest him with apparent authority to collect the money due and to estop the defendant from denying that'he possessed such authority. (Williams v. Walker, 2 Sandf. Ch. 325 ; Smith v. Kidd, 68 N. Y. 130 ; Crane v. Gruene wald, 120 id. 274 ; Central Trust Co. v. Folsom, 167 id. 285.) The execution and delivery to him of the certificate of satisfaction is strong evidence of actual authority, and, in the absence of some satisfactory explanation, must be deemed conclusive. While the evidence, as I have said, is conflicting upon both questions, the defendant denying the genuineness of the signature to the satisfaction piece, as well ás the' possession of the bond and mortgage by the attorney, the findings of the learned trial court in the plaintiff’s favor are abundantly sustained, and the judgment decreeing the delivery of the securities to the plaintiff; and the cancellation and discharge of the record of the mortgage should accordingly be affirmed.

•All concurred.

Judgment affirmed, with costs.

Cases cited

Smith v. Kidd 68 N. Y. 130 N.Y. 1877-01-16 p. 100