People ex rel. Sayles v. Fitzgerald — 13 N.Y.S. 663

Majority

p. 663

People ex rel. Sayles v. Fitzgerald, Register.

(Supreme Court, General Term, First Department.

March 13, 1891.)

Headnote

Mandamus—To Resister of Deeds—Affidavit.

The affidavit to obtain a peremptory mandamus, to compel a register to receive satisfactions of mortgages and discharge the mortgages, averred that the relator was about to pay off the mortgages, and that the mortgagees were ready to deliver satisfactions thereof, which the register refused to receive because of a certain objection, which was stated. Held, that no practical question was presented, as the relator was not the holder of any satisfaction piece on which he could demand the discharge of the mortgages, and a mandamus should not be granted.

Appeal from special term, New York county.

Application by Solomon Sayles for a peremptory mandamus to compel Frank T. Fitzgerald, register of the city and county of New York, to receive certain satisfactions of mortgages, and to discharge and cancel of record the mortgages therein mentioned. The relator appeals from an order denying his application.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Hess, Townsend & McClelland, for appellant. William H. Clark, (C. D. ■ Olendorf and J. M. Ward, of counsel,) for respondent.

A motion was made for a peremptory mandamus to compel the register to receive certain satisfactions of mortgages. It appeared from the affidavit upon which the application was founded that the mortgages were held and owned by Amelia Einstein and Jacob Hess, as guardian of the persons and estates of Olaribel, Arthur, and Viola Spiess, who were appointed such guardians by the surrogate of the county of New York; that the relator is about to pay off and discharge such mortgages; and the applicant, on behalf of the guardians, is ready to deliver satisfaction of the mortgages executed in proper form and duly acknowledged by one of the guardians, to-wit, said Jacob Hess. The affiant further alleges that, as appears by-affidavit annexed, the register will not receive said satisfaction pieces or discharge said mortgages thereon, for the reason that the same are not executed and acknowledged by both said guardians, and that the reasons why said satisfaction of mortgages are not executed by both is that said Amelia Einstein is now abroad temporarily, residing in Geneva, Switzerland. The court denied the motion for a mandamus, and from the order thereupon entered this appeal is taken.

It is entirely sufficient for the purpose of disposing of this appeal to call attention to the fact that no practical question is presented. The mortgages have not been paid off. The relator has not paid the money, has not satisfied the mortgages, and is not in condition to demand from the register the satisfaction of the mortgages in question, not being the holder of any satisfaction piece. It would certainly be straining the powers of this court to adjudicate in advance as to what the register should do in case of the happening of some future event. It-is sufficient for the court to adjudicate upon actual transactions, and not to act as adviser of public officials as to what their conduct should be in case certain events happened. The order should be affirmed, with costs. All concur.