People ex rel. Sayles v. Fitzgerald — 37 N.Y. St. Rep. 540

Majority

p. 540

The People ex rel. Solomon Sayles, App’lt, v. Frank T. Fitzgerald, Register, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Mandamus.

A mandamus will not be granted to compel the action of a public officer in case of the happening of some future event. So held, on application for mandamus to compel the register of deeds to receive satisfactions of mortgages and to discharge the same, where the mortgages had not yet been paid and the petitioner was not the holder of any satisfaction piece.

Appeal from order denying motion for mandamus.

Hess, Townsend & McClelland, for app’lt; J. M. Ward, for resp’t.

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 guardians of the persons and estates of Claribel, Arthur and Viola Spiess, who were appointed such guardians by the surrogate of the county of Hew 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 satisfactions 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 satisfactions 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 mandamu$x 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 mortgage 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

p. 541

officials as to what their conduct should be in case certain events happened.

The order should be affirmed, with costs.

Brady and Daniels, JJ., concur.