Mosher v. Campbell — 37 N.Y. Sup. Ct. 230

Majority

p. 230

JAMES A. MOSHER, Respondent, v. MATTHEW P. CAMPBELL, Appellant.

Headnote

County Court — has jurisdiction over actions to compel the satisfaction of a mortgage.

'Where a person has entered into a written agreement to pay and discharge a mortgage and has thereafter taken an assignment thereof to himself instead of causing the same to be satisfied, an action may be brought against him in-a County Court to compel him to satisfy and discharge the mortgage, and to pay to the plaintiff the damages occasioned by his failure so to do.

Avery v. Wülis ( 24 Hun, 548 ) distinguished.

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe decision of tbe County Court of Cayuga' county.

J. Rosecranes, for the appellant.

Jacob B. Decker, for tbe respondent.

This action was brought in tbe County Court to compel tbe defendant to satisfy and discharge a mortgage, and for damages which tbe plaintiff bad sustained by reason of tbe defendant not having discharged it in accordance with bis agreement.

This action is founded upon a written agreement of tbe defendant to pay and discharge tbe mortgage in question. Instead of so doing be purchased and bad tbe mortgage assigned to himself. Tbe only question raised and discussed upon tbe appeal is the jurisdiction of tbe County Court. Section 15, article 6 of tbe Constitution, provides : “ Tbe County Court shall have tbe powers and jurisdiction they now possess until altered by tbe legislature. They shall also have original jurisdiction in all cases where tbe defendants reside in tbe county, and in which tbe damages claimed shall not exceed one thousand dollars,” etc. * * * “ They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.” Section 340 of the Code provides that the jurisdiction of each County Court “ extends * * * to an action for the partition of real property, for dower, for the foreclosure, redemption or satisfaction of a mortgage upon real property.”

It is contended on the part of the appellant that this clause of the

p. 231

Code does not give jurisdiction to satisfy a mortgage upon principles of equity; tbat in the case under consideration it depends upon the right of the court to compel specific performance of a contract, and the case of Avery v. Willis (reported in 24 Hun, 548 ) is relied upon to sustain his claim. That action was brought to reform a mortgage, to mate it a lien upon certain real estate and for its foreclosure. The court held that the County Court did not have jurisdiction to entertain an action for the reformation of a mortgage ; that such jurisdiction was not given by the statute. That case we regard as clearly distinguishable from the one under consideration. The statute referred to does not give the County Court jurisdiction to reform- a mortgage, but does give the court jurisdiction to satisfy a mortgage, and such jurisdiction is not limited to cases of payments.

Our conclusion is that the County Court had jurisdiction to decree that the mortgage should be discharged in accordance with the written agreement of the defendant.

Judgment should be affirmed, with costs.

Smith, P. J., and Hardin, J., concurred.

So ordered.