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NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
ARTICLE 19
DISCHARGE OR EXTINGUISHMENT OF ENCUMBRANCES, CLAIMS AND INTERESTS
Section 1901. Release of rents reserved by leases
in perpetuity.
1911. Action to extinguish inchoate right of dower.
1921. Discharge of mortgage.
1921-a. Partial release from lien of
mortgaged premises.
1931. Discharge of record of ancient
mortgages presumed paid.
1932. Discharge of record of ancient
mortgage where time of maturity is dependent
on contingent event related to use of
premises.
1933. When county clerk or register to
discharge mortgage of record.
1941. When special proceeding to quiet
title may be maintained.
1942. Petition in special proceeding to
quiet title.
1943. Order for publication of notice to
persons interested.
1944. Hearing and final order upon non-
appearance of adverse claimants.
1945. Hearing and final order upon
appearance of adverse claimants.
1946. Notice of pendency to be filed and recorded.
1951. Extinguishment of non-substantial
restrictions on the use of land.
1953. Effect of certain special
limitations and conditions subsequent.
1954. Action to limit existing
possibilities of reverter and rights of entry
restricting the use of land.
1955. Modification or extinguishment of
certain restrictions on the use of land held
for charitable purposes.
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Sec. 1901. RELEASE OF RENTS RESERVED BY LEASES IN PERPETUITY.
1. Any person interested in lands held under a lease in
perpetuity, upon which no rent has been paid for at least
twenty years, may present his petition to the courts
mentioned in this section asking that it be declared that
the rents and reversion have been released to the owner of
the fee. Such petition shall be verified, shall describe the
lease and allege that the rents and reversion have been
released, and shall state such facts as the petitioner can
ascertain relative to the execution of a release and the
identity of the persons who would otherwise be the present
owners of the rents and reversion and the last known owner
thereof.
2. Such petition may be presented to the supreme court or to
the county court of the county where the lands are situated.
The court may thereupon order all persons interested to show
cause at a certain time and place why the rents and
reversion should not be declared to have been released. A
description of the lease and lands affected thereby and the
name of the last known owner of the rents and reversion
shall be specified in such order, and the order shall be
published in such newspaper or newspapers and for such time
as the court shall direct. The court may also direct the
order to be personally served upon such persons as it shall
designate.
3. The court may issue commissions to take the testimony of
witnesses and may refer the petition to a referee to take
and report proofs of the facts stated in the petition. Upon
being satisfied that the matters alleged in the petition are
true, the court may make an order declaring that the rents
and reversion have been released to the owner of the fee.
The nonpayment of rent under any such lease for twenty years
shall be presumptive evidence of such a release.
4. The entry of such order in the office of the clerk of the
county where such lands are situated shall have the same
effect as a release of such rents and reversion to such
owner then duly executed and recorded. The county clerk
shall note on the margin of the record of the original lease
a minute of the entry of such order.
Sec. 1911. ACTION TO EXTINGUISH INCHOATE RIGHT OF DOWER.
1. An owner of land subject to an inchoate right of dower may
maintain an action in the supreme court against the
possessor of such right to have the right extinguished. In
such action the court shall find the present cash value of
the inchoate right of dower according to the law applicable
to annuities and survivorships. It shall also determine
whether the payment to the defendant of the sum found, in
lieu of her right, would be unduly prejudicial to her. If
the court determines that such payment would not be unduly
prejudicial, the court, upon proof of payment of such sum to
the defendant or upon payment into court for her credit,
shall make an order declaring the inchoate right of dower
extinguished.
2. Nothing herein contained shall be construed to affect
section 967 or article 17 of this chapter, or section two
hundred and forty-eight of the surrogate's court act.
Sec. 1921. DISCHARGE OF MORTGAGE.
1. After payment of authorized principal, interest and any
other amounts due thereunder or otherwise owed by law has
actually been made, and in the case of a credit line
mortgage as defined in section two hundred eighty-one of the
real property law on written request, a mortgagee of real
property situate in this state, unless otherwise requested
in writing by the mortgagor or the assignee of such
mortgage, must execute and acknowledge before a proper
officer, in like manner as to entitle a conveyance to be
recorded, a satisfaction of mortgage, and thereupon within
forty-five days arrange to have the satisfaction of
mortgage: (a) presented for recording to the recording
officer of the county where the mortgage is recorded, or (b)
if so requested by the mortgagor or the mortgagor's
designee, to the mortgagor or the mortgagor's designee. The
mortgagee shall within forty-five days deliver the note and
the mortgage and where a title is registered under article
twelve of the real property law, the registration copy of
the mortgage and any registration certificates in the
mortgagee's possession to the mortgagor or the mortgagor's
designee making such payment and request if required as
aforesaid. Delivery of a satisfaction of mortgage in
accordance with the terms of section two hundred seventy-
five of the real property law shall be deemed to satisfy the
requirements of this section regarding the satisfaction of
mortgage.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section any person
having an interest in the mortgage or the debt or obligation
secured thereby or in the mortgaged premises may apply to
the supreme court or a justice thereof, or to the county
court or a judge thereof, in or of any county in which the
mortgaged premises or any part thereof are situated in whole
or in part, upon a petition, for an order to show cause why
an order should not be made by such court canceling and
discharging the mortgage of record, and directing the
register or clerk of any county in whose office the same may
have been recorded to mark the same upon his records as
canceled and discharged, and further ordering and directing
that the debt or other obligation secured by the mortgage be
canceled, upon condition that in the event such mortgage is
not paid, the sums tendered pursuant to the foregoing
provisions of this section be paid to the officer specified
by law to hold court funds and moneys deposited in court in
the county wherein the mortgaged premises are situated in
whole or in part. Said petition must be verified in like
manner as a verified pleading in an action in the supreme
court and it must set forth the grounds of the application.
3. In any case where an actual tender, as provided in
subdivision one of this section, cannot with due diligence
be made within this state, any person having an interest in
the mortgage or the debt or obligation secured thereby, or
in the mortgaged premises, may apply to the supreme court or
a justice thereof, or to the county court or a judge
thereof, in or of any county in which the mortgaged
premises, or any part thereof are situated in whole or in
part, upon petition setting forth the grounds of the
application and verified as aforesaid, for an order to show
cause why an order should not be made by said court
canceling and discharging the mortgage of record, and
directing the register or clerk of any county in whose
office the same may have been recorded to mark the same upon
his records as canceled and discharged and further ordering
and directing that the debt or other obligation secured by
the mortgage be canceled, upon condition that the principal
sum of the mortgage or any unpaid balance thereof, with
interest up to the date when said order shall be entered and
the aforesaid fees allowed by law, be paid to the officer
specified by law to hold court funds and moneys deposited in
court in the county wherein the mortgaged premises are
situated in whole or in part.
4. In the case of a mortgage secured by property improved by a
one-to-six family, owner occupied, residential structure or
residential condominium unit, if the mortgagee fails within
ninety days to deliver the satisfaction of mortgage and/or
fails within ninety days to deliver the note and the
mortgage and any other documents as required by subdivision
one of this section and if the mortgage is not otherwise
satisfied the mortgagee shall be liable to such person in
the amount of five hundred dollars or the economic loss to
such person, whichever is greater. If the mortgagee has
delivered such satisfaction of mortgage in a timely manner
and has certified that the note and/or mortgage are not in
its possession as of such date, the mortgagee shall not be
liable under this section if the mortgagee agrees to defend
and hold harmless the mortgagor by reason of the inability
or failure of the mortgagee to furnish the note or mortgage
within the time period prescribed in this subdivision;
provided that in connection with mortgage loans purchased
prior to July twenty-seven, nineteen hundred ninety-one by
the state of New York mortgage agency pursuant to section
two thousand four hundred five or two thousand four hundred-
five-b of the public authorities law, the state of New York
mortgage agency, its successors or assigns shall not be
liable under this section if it does not defend and hold
harmless the mortgagor by reason of the inability or failure
of the state of New York mortgage agency, its successors or
assigns to furnish the note or mortgage within the time
period prescribed in this subdivision. Damages imposed by
this subdivision shall be in addition to the other costs and
fees allowed in this section.
5. (a) In the case of a mortgage secured by property
improved by a one-to-six family, owner occupied,
residential structure or residential condominium unit,
if within ninety days of receipt of payment, and
request if required, the mortgagee fails to deliver to
the mortgagor or the mortgagor's designee the
satisfaction of mortgage, the note and the mortgage and
any other documents as required by subdivision one of
this section, any attorney-at-law may execute,
acknowledge and upon payment of an additional filing
fee of fifty dollars cause to be filed with the
recording officer of the county where the mortgage is
recorded, an affidavit which complies with this
section. Unless the mortgagee shall file a verified
objection to such affidavit within thirty-five days of
being filed, as of the date thirty-five days subsequent
to its filing, such affidavit shall be recorded and
satisfy the lien of such mortgage on the mortgaged
premises.
(b) The affidavit shall state that:
(i) The affiant is an attorney-at-law and that the
affidavit is made on behalf of and at the
request of the mortgagor or any person who has
acquired title to the mortgaged premises;
(ii) The mortgagor made a proper request of the
mortgagee for the execution of the satisfaction
of mortgage pursuant to subdivision one of this
section;
(iii) The mortgagor has received a payoff statement
for the loan secured by the mortgage, and shall
annex as evidence a copy of the payoff
statement;
(iv) The affiant has ascertained that the mortgagee
received payment of the loan in accordance with
the payoff statement, and shall annex as
evidence, copies of the check negotiated by the
mortgagee or documentary evidence of such
payment;
(v) The affiant, at least thirty days after the
mortgagee received payment, has given the
mortgagee written notice together with a copy of
the proposed affidavit, delivered by certified
or registered mail, return receipt requested, to
the attention of the person or department set
forth in the payoff statement, of the affiant's
intention to execute and record an affidavit in
accordance with this section; and
(vi) The mortgagee has not responded in writing to
such notification or all requests by the
mortgagee for payment have been complied with at
least fifteen days prior to the date of the
affidavit.
(c) Such affidavit shall identify the mortgagor and the
mortgagee, state the date of the mortgage, the liber
and page of the land records where the mortgage is
recorded and give similar information with respect to
any recorded assignment of the mortgage.
(d) The affiant shall attach to the affidavit photostatic
copies of the documentary evidence that payment has
been received by the mortgagee, including mortgagee's
endorsement of any check, and a photostatic copy of the
payoff statement and certify each to be a copy of the
original document.
(e) Within five days of the filing of such affidavit the
register or clerk of every county in whose office said
mortgage has been recorded shall give the mortgagee
written notice, delivered by certified or registered
mail, return receipt requested, to the attention of the
person or department set forth in the payoff statement,
as annexed to the affidavit filed hereunder, of the
filing of such affidavit, which notice shall include
the following notice in capital letters:
"THIS NOTICE IS MADE UNDER SECTION 1921 OF
THE REAL PROPERTY ACTIONS AND PROCEEDINGS
LAW. FAILURE TO FILE WITH THIS OFFICE WITHIN
THIRTY DAYS OF THIS NOTICE A VERIFIED
OBJECTION TO THE DISCHARGE OF THE MORTGAGE
DESCRIBED IN THIS NOTICE WILL RESULT IN SUCH
MORTGAGE BEING CANCELED AND DISCHARGED OF
RECORD."
Unless the register or clerk of such county shall
receive from the mortgagee, within thirty-five days of
the date of filing of such affidavit, a verified
objection by the mortgagee to the discharge of said
mortgage, the register or clerk shall record the
affidavit and supporting documents and mark the
mortgage described in the affidavit canceled and
discharged of record and such recorded affidavit shall
have the same force and effect as a duly executed
satisfaction of mortgage recorded in accordance with
section three hundred twenty-one of the real property
law. If the register or clerk of such county shall
receive from the mortgagee, within thirty-five days of
the date of filing of such affidavit, a verified
objection by the mortgagee to the discharge of said
mortgage, the register or clerk shall return the
original affidavit and the verified objection to the
attorney filing such affidavit without marking the
mortgage described in the affidavit canceled or
discharged of record. The clerk or register of such
county shall additionally transmit a copy of the
affidavit and the verified objection to its applicable
appellate division of the supreme court, committee on
professional standards, for such further proceedings as
determined appropriate by such committee.
(f) The county clerk or register shall index the affidavit
in the same manner as a satisfaction of mortgage and
shall record such instrument upon payment of the same
fees as for a satisfaction of mortgage.
(g) (i) Any attorney who prepares an affidavit and
negligently causes the affidavit to contain
false information shall be liable to the
mortgagee for any monetary damages and subject
to other applicable sanctions under law.
(ii) Any person who supplies false information for
the affidavit shall be liable to the mortgagee
for any monetary damages and subject to other
applicable sanctions under law.
(h) A banking or other organization having the original or
copies thereof, shall furnish, within sixty days of
receiving a written request, a copy of the front and
reverse sides of a check issued to satisfy the mortgage
obligation by such banking or other organization,
needed for completion of an affidavit in accordance
with this subdivision.
6. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this
section shall be given to the then mortgagee of record and
also, if the petition show that there is a mortgage not of
record, to such mortgagee. Such notice shall be given in
such manner as the court or the judge or justice thereof to
whom the petition is presented may direct, and said court or
judge or justice may require such longer notice to be given
as may seem proper. If sufficient cause be shown the court
or judge or justice thereof may issue such order to show
cause returnable in less than eight days.
7. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the
identity of the mortgagee and of the person presenting the
petition, shall inquire in such manner as it may deem
advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said principal
sum or any unpaid balance thereof and interest and the said
fees allowed by law have been duly paid or tendered but not
accepted and said satisfaction of mortgage has been duly
presented for execution, or that such tender and
presentation could not have been made within this state with
due diligence, then, in the event such mortgage is not paid,
the court shall make an order directing the sums so
tendered, or in a case where such tender could not have been
made as aforesaid, directing the principal sum or any unpaid
balance thereof, with interest thereon to the date of entry
of said order together with all other amounts due thereunder
pursuant to subdivision three of this section and the
aforesaid fees allowed by law, to be paid to the officer
specified by law to hold court funds and moneys deposited in
court in the county wherein the application herein is made,
and directing and ordering that upon such payment the debt
or other obligation secured by the mortgage be canceled and
further directing the register or clerk of any and every
county in whose office said mortgage shall have been
recorded to mark said mortgage canceled and discharged of
record upon the production and delivery to such register or
clerk of a certified copy of the order and the receipt of
such officer, showing that the amount required by said order
has been deposited with him, which certified copy of said
order and which receipt shall be recorded, filed and indexed
by any such register or clerk in the same manner as a
certificate of discharge of a mortgage. Said receipt need
not be acknowledged to entitle it to be recorded. The court
in its discretion, when granting any such order after
application therefor pursuant to subdivision two of this
section, may award costs and reasonable attorney's fees to
the person making the application, in the absence of the
showing of a valid reason for the failure or refusal to
execute the satisfaction of mortgage and deliver the same,
the note and mortgage and any other documents required under
subdivision one of this section. The money deposited shall
be payable to the mortgagee, his personal representative or
assigns, upon an order of the supreme court or county court,
directing the payment thereof to him upon such evidence as
to his right to receive the same as shall be satisfactory to
the court.
8. Wherever any register or clerk shall record any order and
receipt as hereinbefore specified, he shall mark the record
of said mortgage as follows:
"Canceled and discharged by order of the ...................
Court, County of ...................... , dated ............
and filed ...................... ,"
and thereupon the lien of such mortgage shall be deemed to
be discharged and the debt secured thereby shall be deemed
to be canceled. Said register or clerk shall be permitted to
charge for recording and filing said order and receipt, the
same fees to which he is now entitled for recording and
filing a certificate of satisfaction of a mortgage.
9. When used in this section:
(a) "Mortgagee" means (i) the current holder of the
mortgage of record or the current holder of the
mortgage, or (ii) any person to whom payments are
required to be made or (iii) their personal
representatives, agents, successors, or assigns.
(b) "Attorney-at-law" means any person admitted to practice
law in this state and in good standing.
(c) "Payoff statement" means a statement setting forth the
unpaid balance of the mortgage, including principal,
interest and other charges pursuant to the loan
documents, together with a per diem rate for interest
accruing after the date to which the unpaid balance has
been calculated. The payoff statement furnished by a
banking organization or corporate mortgagee shall
include a name of an individual employed by such
banking organization or corporate mortgagee or
department of such banking organization or corporate
mortgagee to whom inquiry concerning the payoff
statements are to be addressed in addition to the
address of the banking organization or corporation for
use in connection with the affidavit under subdivision
five of this section.
(d) "Banking organization" shall have the same meaning as
provided in subdivision eleven of section two of the
banking law and shall include any institution chartered
or licensed by the United States or any state.
(e) "Note" shall include any written evidence of
indebtedness.
Sec. 1921-a. PARTIAL RELEASE FROM LIEN OF MORTGAGED PREMISES.
1. Whenever the owner of mortgaged property situate in this
state shall be entitled, pursuant to the terms of the
mortgage encumbering such property, to obtain the release of
a portion thereof from the lien of such mortgage, then, upon
(1) delivery by such owner to the mortgagee of a partial
release from lien of mortgaged premises, in a form entitled
to be recorded, describing the portion of the mortgaged
premises so entitled to be released, together with the fees
allowed by law for the taking of the acknowledgment of a
deed, (2) proof that all requirements set forth in such
mortgage as conditions precedent to the execution and
delivery by the mortgagee of such partial release have been
satisfied, and (3) payment, or tender of payment, to the
mortgagee of all sums required under the terms of the
mortgage to be paid to obtain such partial release, such
mortgagee must execute and acknowledge before a proper
officer, in like manner as to entitle a conveyance to be
recorded, the partial release theretofore delivered to such
mortgagee or such other partial release from lien of
mortgaged premises as may be required to be executed under
the terms of the mortgage, which release shall be in
recordable form.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section, any owner of
the mortgaged premises may apply to the supreme court or a
justice thereof, or to the county court or a judge thereof,
in or of any county in which the mortgaged premises or any
part thereof are situated in whole or in part, upon a
petition, for an order to show cause why an order should not
be made by such court releasing of record from the lien of
said mortgage the parcel or parcels of land described in
said release, and directing the register or clerk of any
county in whose office the same may have been recorded to
mark the same upon his records as released as to the parcel
or parcels described in such order, and further ordering and
directing that the debt or other obligation secured by the
mortgage be reduced in the amount tendered or paid, upon
condition that in the event such mortgage or part thereof is
not paid, the sums tendered pursuant to the foregoing
provisions of this section be paid to the officer specified
by law to hold court funds and moneys deposited in court in
the county wherein the mortgaged premises are situated in
whole or in part for the purpose of paying said sum over to
the mortgagee. Said petition must be verified in like manner
as a verified pleading in an action in the supreme court and
it must set forth the grounds of the application.
3. In any case where an actual tender, as provided in
subdivision one of this section, cannot, with due diligence,
be made, any owner of the mortgaged premises may apply to
the supreme court or a justice thereof, or to the county
court or a judge thereof, in or of any county in which the
mortgaged premises, or any part thereof are situated in
whole or in part, upon petition setting forth the grounds of
the application and verified as aforesaid, for an order to
show cause why an order should not be made by said court
releasing of record the parcel or parcels described in said
release from the lien of the mortgage, and directing the
register or clerk of every county in which the mortgaged
premises are located to mark the same upon his records as
released as to the parcel or parcels described in such order
and further ordering and directing that the debt or other
obligation secured by the mortgage be reduced, upon
condition that the prerequisites for obtaining such release
set forth in subdivision one of this section and the sum of
the mortgage required to be paid pursuant to the terms and
conditions of said mortgage and fees allowed by law or the
mortgage, be paid to the officer specified by law to hold
court funds and moneys deposited in court in the county
wherein the mortgaged premises are situated in whole or in
part until such time as said sums may be claimed by the
mortgagee.
4. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this
section shall be given to the mortgagee. Such notice shall
be given in such manner as the court or the judge or justice
thereof to whom the petition is presented may direct, and
said court or judge or justice may require such longer
notice to be given as may seem proper. If sufficient cause
be shown the court or judge or justice thereof may issue
such order to show cause returnable in less than eight days.
5. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the
identity of the mortgagee and of the person presenting the
petition, shall inquire, in such manner as it may deem
advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said sum or sums
required to be paid pursuant to the terms and conditions of
the mortgage and the fees allowed by law have been duly paid
or tendered but not accepted, said partial release from lien
of mortgage instrument has been duly presented for
execution, or that such tender and presentation could not
have been made with due diligence and the prerequisites for
obtaining such release as set forth in subdivision one of
this section have been met, then, in the event that portion
of the lien of such mortgage required to be released
pursuant to the terms and conditions thereof is not so
released, the court shall make an order directing the sums
so tendered, or in a case where such tender could not have
been made as aforesaid, directing the sum or sums so
required and the fees allowed by law, to be paid to the
officer specified by law to hold court funds and moneys
deposited in court in the county wherein the application
herein is made, and directing and ordering that upon such
payment the debt or other obligation secured by the mortgage
be reduced and further directing the register or clerk of
every county in which the mortgaged premises are located to
mark said mortgage reduced of record upon the production and
delivery to such register or clerk of a certified copy of
the order and the receipt of such officer showing that the
amount required by said order and which receipt shall be
recorded, filed and indexed by any such register or clerk in
the same manner as a certificate of discharge of a release
from lien of mortgaged premises. Said receipt need not be
acknowledged to entitle it to be recorded. The court in its
discretion, when granting any such order after application
therefor pursuant to subdivision two of this section, may
award costs and reasonable attorneys' fees to the person
making the application, in the absence of the showing of a
valid reason for the failure or refusal to execute the
partial release from lien of mortgaged premises and deliver
the same. The money deposited shall be payable to the
mortgagee, his representatives or assigns, less any court
costs and reasonable attorneys' fees allowed by the court as
herein provided which shall be paid to the owner of the
mortgaged premises who has made application for the order
herein referred to upon an order of the supreme court or
county court, directing the payment thereof to such owner
upon such evidence as to his right to receive the same as
shall be satisfactory to the court.
6. Wherever any register or clerk shall record any order and
receipt as hereinbefore specified, he shall mark the record
of said mortgage, if same be recorded, as follows:
"Part of the premises herein described have been released
from lien of this mortgage by order of the __________ court,
County of ___________, dated __________ and filed __________
a description of the property so released being contained in
such order"
and thereupon the lien of such mortgage shall be deemed to
be released as to the premises so described in such order
and the debt or obligation secured thereby shall be deemed
to be reduced as provided in such order. Said register or
clerk shall be permitted to charge for recording and filing
said order and receipt, the same fees to which he is
entitled for recording and filing a certificate of release
of lien of mortgaged premises.
7. The word "mortgagee" whenever used in this section shall be
construed to include the persons entitled to enforce or
satisfy the mortgage and the personal representatives,
successors and assigns, of such persons.
8. Nothing contained in this section shall limit or abridge any
rights or remedies otherwise available at law or in equity
to the owner of the mortgaged premises or any other person
having an interest in such mortgaged premises.
Sec. 1931. DISCHARGE OF RECORD OF ANCIENT MORTGAGES PRESUMED
PAID.
1. The mortgagor, his heirs or any person having any interest
in any lands described in any mortgage of real estate in
this state, which is recorded in this state, or mentioned in
a deed recorded in this state, and which, from the lapse of
time, is presumed to be paid, or in any moneys into which
said lands have been converted under a decree of a court of
competent jurisdiction, and which are held in place of such
lands to answer such mortgage, may present his petition
together with an official search of the recording officer in
whose office the mortgage is recorded, or a search prepared
by a person duly licensed and admitted to practice law in
this state or by a title company duly incorporated and
authorized to transact business in this state showing
assignments of record, if any, to the courts mentioned in
this article, asking that such mortgage may be discharged of
record.
2. Such petition shall be verified; it shall describe the
mortgage, and when and where recorded, or if such mortgage
is not recorded that the same may be adjudged to have been
paid and to be no longer a lien upon the lands therein
described, and shall allege that such mortgage is paid; that
the mortgagee has, or, if there be more than one mortgagee,
that all of them have been dead for more than five years; or
if such mortgage has been assigned by an instrument in
writing for that purpose executed and acknowledged, so as to
entitle the same to be recorded, and such instrument of
assignment has been recorded in the office of the clerk of
the county where the mortgaged premises or some portion
thereof is situated, and the assignee or assignees of said
mortgage have been dead for more than five years, such
petition shall state such facts, and no statement respecting
the mortgagee or mortgagees or the names and places of
residence of their heirs shall be required; or if such
mortgagee be a corporation or association, that such
corporation or association has ceased to exist and do
business as such for more than five years; the time and
place of his or their death, and place of residence at the
time of his or their death; whether or not letters
testamentary or of administration have been taken out, or,
if said mortgagee or mortgagees, or assignee or assignees at
the time of his or their death resided out of this state,
whether or not letters testamentary or of administration
have been taken out in the county where such mortgaged
premises are situated; or if a corporation or association,
its last place of business; the names and places of
residence, as far as the same can be ascertained, of the
heirs of such mortgagee or mortgagees, or assignee or
assignees; or, if such mortgagee be a corporation or
association, then the names of one or more of the receivers,
if any were appointed, or of the person who has the care of
the closing up of the business of such corporation or
association, and that such mortgage has not been assigned or
transferred, and if such mortgage has been assigned, state
to whom and the facts in regard to the same.
Provided, however, that if such mortgage has been duly
assigned, by indorsement thereof or otherwise, but not
acknowledged so as to entitle the same to be recorded, then
it shall be competent for the court, at any time within the
period aforesaid, upon proof that all the matters
hereinbefore required to be stated in said petition are
true, and that the assignee of such mortgage if living, or
his personal representative if dead, has been paid the
amount due thereon, to make an order that such mortgage be
discharged of record.
Provided, further, that in case of a mortgage which was
recorded or adjudged to have been paid and no longer a lien,
more than fifty years prior to the presentation of such
petition, if the petitioner is unable with reasonable
diligence to ascertain the facts herein required to be
stated in the petition, other than the fact of payment, the
petition may set forth the best knowledge and information of
the petitioner in respect thereto and what efforts have been
made to ascertain such facts, and if the court shall be
satisfied that the petitioner has made reasonable effort to
ascertain such facts, and that the same cannot be
ascertained with reasonable diligence, it may then, in its
discretion, proceed upon said petition as hereinafter
provided.
3. Such petition may be presented to the supreme court in the
county in which the mortgaged premises are situated, or to
the county court of such county.
4. The court, upon the presentation of such petition, shall
make an order requiring all persons interested to show cause
at a certain time and place, why such mortgage should not be
discharged of record. The names of the mortgagor, mortgagee
and assignee, if any, the date of the mortgage and where
recorded, and the town or city in which the mortgaged
premises are situate, shall be specified in the order. The
order shall be published in such newspaper or newspapers,
and for such time as the court shall direct. The court may
also direct the order to be personally served upon such
persons as it shall designate.
5. The court may issue commissions to take the testimony of
witnesses and may refer it to a referee to take and report
proofs of the fact stated in the petition. The certificate
of the proper surrogate or surrogates, whether or not
letters testamentary or of administration have been issued,
shall be evidence of the fact; and the certificate of the
clerk of the county or counties in which the mortgaged
premises have been situate, since the date of the said
mortgage, shall be evidence of the assignment of such
mortgage, or of a notice of the pendency of an action to
foreclose such mortgage, and of such other matters as may be
therein stated; or if a notice of the pendency of an action
to foreclose such mortgage has been filed, then his
certificate that such mortgage has never been foreclosed.
Unless the allegation of payment shall be denied, and
evidence be given tending to rebut the presumption of
payment, arising from lapse of time, such lapse of time
shall be sufficient evidence of payment. Upon being
satisfied that the matters alleged in the petition are true,
the court may make an order that the mortgage be discharged
of record.
Sec. 1932. DISCHARGE OF RECORD OF ANCIENT MORTGAGE WHERE TIME
OF MATURITY IS DEPENDENT ON CONTINGENT EVENT
RELATED TO USE OF PREMISES.
1. The lien of every mortgage or conveyance of real estate in
this state given as security for the payment of money,
recorded more than seventy-five years ago, where the time of
maturity thereof is dependent solely upon the occurrence of
a contingent event relating to use of the mortgaged premises
for religious purposes, and where the reason for such use no
longer applies to the mortgaged premises because of changes
in the type of neighborhood in which the premises are
situated, may be discharged of record by judgment of the
supreme court in the county where the mortgaged premises are
situated, or of the county court of such county, in the
manner provided in this section.
2. The court, upon presentation of a petition, together with an
official search of the recording officer in whose office the
mortgage is recorded or a search prepared by a person duly
licensed and admitted to practice law in this state or by a
title company duly incorporated and authorized to transact
business in this state showing such recordation and
assignments of record, if any, the petition showing such
contingent event relating to the use of the mortgaged
premises for religious purposes and that the reason for such
use no longer applies to the mortgaged premises because of
changes in the type of neighborhood in which the mortgaged
premises are situated, and showing that the petitioner has
made reasonable effort to locate the mortgagee or other
person or persons authorized to execute and deliver a
satisfaction of such mortgage or conveyance but has been
unable to do so after the exercise of reasonable diligence,
shall make an order requiring all persons interested to show
cause at a certain time and place, why such mortgage should
not be discharged of record. Such order to show cause and
the publication and service thereof shall comply with the
requirements of section 1931 of this chapter, and the
proceedings on the return of such order to show cause shall
comply with the requirements of section 1931 of this chapter
except as to the allegation of payment and evidence to rebut
the presumption thereof.
3. Any judgment of the court thereon discharging the mortgage
of record shall be made only upon proof of such contingent
event relating to use of the mortgaged premises for
religious purposes, and of the changes in the type of
neighborhood in which the mortgaged premises are situated,
showing that the reason for such use no longer applies to
the mortgaged premises, and upon proof of the other matters
alleged in the petition; and any such judgment shall be made
without prejudice to the right, if any, of the mortgagee,
his representatives or assigns or other person or persons to
receive or collect the mortgage debt in any action or
proceeding not affecting such mortgaged premises.
Sec. 1933. WHEN COUNTY CLERK OR REGISTER TO DISCHARGE
MORTGAGE OF RECORD.
The county clerk, upon being furnished with an order discharging
a mortgage of record, as provided in section 1931 or section
1932, and, in the city of New York, the register, upon being
furnished with a certified copy of such order, and upon payment
of the fees allowed by law for discharging mortgages, shall
record the order and discharge the mortgage of record.
Sec. 1941. WHEN SPECIAL PROCEEDING TO QUIET TITLE MAY BE
MAINTAINED.
Whenever real property shall have been conveyed by a sheriff or
referee, pursuant to a judicial decree, which decree has been
lost or destroyed, and the defendants (other than lienors or
incumbrancers) named in the notice of pendency of the action in
which such decree was made, or those who might claim under them,
or either of them, are dead, unknown or their whereabouts can not
after diligent inquiry be ascertained, the person who has been,
or he and those having his estate who have been, for ten years in
actual possession of such property claiming it in fee under said
sheriff's or referee's deed, which deed shall have been recorded
at least ten years, may maintain a special proceeding for the
purpose of establishing judicially his or their title to such
real property.
Sec. 1942. PETITION IN SPECIAL PROCEEDING TO QUIET TITLE.
1. A person or persons, desiring to institute a proceeding
under section nineteen hundred forty-one, must present a
petition to the supreme court at a special term to be held
in the judicial district in which the real property is
situated, setting forth the facts proving to the
satisfaction of the court, that the case is one of those
specified in that section, and must describe the property
with common certainty, and state what, if any, liens or
incumbrances exist thereon, and the names of the persons, if
any, besides the petitioners, who have been in the actual
possession of the property during the past ten years
claiming title as owners thereof in fee, and how such title
was derived, and shall also annex to said petition a duly
certified copy of the sheriff's or referee's deed recorded
ten years since under which petitioners claim title.
2. In case the property described in said sheriff's or
referee's deed shall have been subdivided, the owner or
owners of the several parcels thereof may unite in the same
petition and proceeding.
Sec. 1943. ORDER FOR PUBLICATION OF NOTICE TO PERSONS
INTERESTED.
Upon the presentation of such petition, duly verified, the said
court shall make an order for the publication of a notice
requiring all persons claiming any interest in the real property
described in such petition to appear before the court at a
special term thereof, to be held at a time and place to be
therein specified, not less than three months nor more than six
months thereafter, and show cause, if any they have, why they
should not be forever barred from maintaining any action or
proceeding for the recovery of the real property, which shall be
substantially described as set forth in said petition, and which
notice shall also contain a reference to the time and place of
record of the sheriff's or referee's deed referred to in the
petition. Said publication shall be made once a week for three
months successively prior to the return day named in said notice
in two newspapers designated in the order as most likely to give
notice to any claimant of the property.
Sec. 1944. HEARING AND FINAL ORDER UPON NON-APPEARANCE OF
ADVERSE CLAIMANTS.
Upon the return day named in said notice the court shall proceed
summarily to inquire into the truth of the matters set forth in
the petition, and may appoint a referee for that purpose, and if
there shall be no appearance by any person claiming any adverse
interest to the petitioners in the real property described in the
petition, the court may make a final order declaring that the
title of the petitioner to such real property has been judicially
established, which final order, together with the petition and
order for and proof of publication of the notice, and the proofs
taken before the court or referee shall be filed in the office of
the clerk of the county in which the real property is situated,
and such final order shall be evidence of the facts so declared
to be established thereby in all courts and places, and
thereafter no action or proceeding for the recovery of the real
property described in said final order or any part thereof, or of
any interest therein, shall be maintained by any person named as
a defendant in the notice of pendency of action referred to in
section 1941, or by any person or persons claiming under such
defendant or either of them.
Sec. 1945. HEARING AND FINAL ORDER UPON APPEARANCE OF ADVERSE
CLAIMANTS.
If any person shall appear on the return day of said notice and
claim in writing an interest in the real property adverse to that
of the petitioners, stating the nature of his claim and his place
of residence, the court may proceed in like manner to inquire
into the truth of the facts stated in the petition and may make a
final order in like manner and with like effect as above
provided, except that such final order shall not affect in any
way any person who shall have appeared on the return day and
asserted a claim adverse to the petitioners, as herein provided
for.
Sec. 1946. NOTICE OF PENDENCY TO BE FILED AND RECORDED.
No final order pursuant to section 1944 or section 1945 shall be
made until the petitioners named in said proceedings, or their
attorney, shall file in the clerk's office of the county in which
such real property is situated a notice of the pendency of the
said special proceeding, containing the names of all the persons
claiming to be then owners of the property in fee, pursuant to
said sheriff's or referee's deed, the object of the proceeding,
together with a brief description of said property. Each county
clerk with whom such notice is filed must immediately record it
in the book kept in his office for recording of notices of
pendency of an action, and index it to the name of each person
claiming to be owner as aforesaid, and said clerk shall be
entitled to receive for his services the same fees therefor as
are now allowed by law for filing, recording and indexing a
notice of pendency of action.
Sec. 1951. EXTINGUISHMENT OF NON-SUBSTANTIAL RESTRICTIONS ON
THE USE OF LAND.
1. No restriction on the use of land created at any time by
covenant, promise or negative easement, or created on or
after September 1, 1958, by a special limitation or
condition subsequent governed by section 1953, shall be
enforced by injunction or judgment compelling a conveyance
of the land burdened by the restriction or an interest
therein, nor shall such restriction be declared or
determined to be enforceable, if, at the time the
enforceability of the restriction is brought in question, it
appears that the restriction is of no actual and substantial
benefit to the persons seeking its enforcement or seeking a
declaration or determination of its enforceability, either
because the purpose of the restriction has already been
accomplished or, by reason of changed conditions or other
cause, its purpose is not capable of accomplishment, or for
any other reason.
2. When relief against such a restriction is sought in an
action to quiet title or to obtain a declaration with
respect to enforceability of the restriction or to determine
an adverse claim arising from the restriction, or is sought
by way of defense or counterclaim in an action to enforce
the restriction or to obtain a declaration with respect to
its enforceability, if the court shall find that the
restriction is of no actual and substantial benefit to the
persons seeking its enforcement or seeking a declaration or
determination of its enforceability, either because the
purpose of the restriction has already been accomplished or,
by reason of changed conditions or other cause, its purpose
is not capable of accomplishment, or for any other reason,
it may adjudge that the restriction is not enforceable by
injunction or as provided in subdivision 2 of section 1953
and that it shall be completely extinguished upon payment,
to the person or persons who would otherwise be entitled to
enforce it in the event of a breach at the time of the
action, of such damages, if any, as such person or persons
will sustain from the extinguishment of the restriction.
Sec. 1953. EFFECT OF CERTAIN SPECIAL LIMITATIONS AND
CONDITIONS SUBSEQUENT.
1. Except as provided in subdivision 4, a special limitation or
condition subsequent created on or after September 1, 1958
shall be governed by this section in any case where it
expressly or by necessary result restricts the use of land,
but if such special limitation or condition subsequent also
creates a possibility of reverter or right of entry
conditioned upon an event other than breach of such a
restriction, it shall be governed by this section to the
extent only that the right of entry or possibility of
reverter is conditioned upon breach of such express or
implied restriction on the use of land.
2. No reverter shall occur and no possessory estate shall
result by reason of such special limitation, and no right of
entry shall accrue by reason of breach of such condition
subsequent, but upon the happening of such a breach the
person or persons who would have such possessory estate or
right of entry except for this section, may maintain an
action in the supreme court to compel a conveyance to him or
them of the land, or the interest therein, which is subject
to the special limitation or condition subsequent.
3. The relief provided in subdivision 2 shall be granted only
to protect a substantial interest in enforcement of the
restriction, established by the person or persons in whose
favor the relief is granted. The action provided for in this
section shall be subject to any defense that might be
interposed in an action to enjoin a violation of the
restriction if it were created by covenant of the person or
persons against whom the relief is sought, and the court may
deny such relief, or impose conditions upon the granting
thereof, or grant alternative relief, upon like cause and in
like manner as in an action for such injunction. If it
appears that the relief provided in subdivision 2 would be
inequitable, the court may, in lieu thereof, restrain the
repetition or continuation of a breach of the restriction,
or it may grant the relief provided in subdivision 2 upon
such terms as justice may require to avoid a forfeiture of
the value of improvements or other unjust enrichment.
4. This section shall not apply where the special limitation or
condition subsequent was created in a conveyance or devise,
whether or not in trust, for benevolent, charitable,
educational, public or religious purposes and restricts the
use of land to such a purpose or to a particular application
or means of carrying out such purpose, or was created by a
lease for a term of less than one hundred years and
restricts use of the leased premises.
Sec. 1954. ACTION TO LIMIT EXISTING POSSIBILITIES OF REVERTER
AND RIGHTS OF ENTRY RESTRICTING THE USE OF LAND.
1. This section shall apply to a special limitation or
condition subsequent created prior to September 1, 1958
which would be subject to section 1953 if it had been
created on or after September 1, 1958.
2. The owners of the estate subject to the special limitation
or condition subsequent, or one or more of such owners, may
maintain an action to obtain a judgment that the special
limitation or condition subsequent be governed by section
1951 and section 1953, or that it be so governed to the
extent of particular terms of the special limitation or
condition subsequent, or to the extent of a particular part
of the land burdened by the restriction. Such action may be
maintained against one or more of the persons who would have
a possessory estate resulting from the occurrence of the
reverter or a right of entry for breach of the condition if
a breach of the restriction had occurred at the time the
action is commenced, to obtain such a judgment with respect
to the interests of the parties to the action.
3. Except as provided in subdivision 4, the court may grant the
relief described in subdivision 2 if it finds that the
primary purpose of the special limitation or condition
subsequent was to restrict the use of land and that the
tenor of the restriction, the circumstances in which it was
imposed, and the conditions in which it operates at the time
of the action are such that the special limitation or
condition subsequent unreasonably limits the use and
development of the land or unreasonably impairs the
certainty of titles.
4. The relief provided in this section shall not be granted if
the court finds that a breach of the restriction has already
occurred.
5. If the complaint in any such action is dismissed on the
ground that a breach of the restriction has already occurred
at the time the action is brought or relief is denied on
such ground, the right of entry for breach of the condition
or any cause of action to recover possession of the land,
owned by a person who was a party to the action, or a person
claiming through or under him, must be asserted in the same
action or by action commenced within six months from the
entry of the judgment therein, and if such action is not
commenced within that time the right of entry, or the
possessory estate resulting from the occurrence of the
reverter, shall be extinguished to the extent that it is
vested at the time of the entry of the judgment in persons
who are parties to the action, or thereafter vests in
persons claiming through or under them by title accruing
after the filing of a notice of pendency of the action.
6. The action provided in this section may be commenced at any
time.
Sec. 1955. MODIFICATION OR EXTINGUISHMENT OF CERTAIN
RESTRICTIONS ON THE USE OF LAND HELD FOR
CHARITABLE PURPOSES.
1. Where land is held, whether or not in trust, for benevolent,
charitable, educational, public or religious purposes and
the use of such land is restricted to such purpose or to a
particular application of or means of carrying out such
purpose by a special limitation or condition subsequent
created in the conveyance or devise under which the land is
so held, or by an agreement to convey, reconvey or surrender
the land or the estate so held upon a contingency relating
to its use, an action may be brought in the supreme court to
obtain relief from such restriction as provided in this
section.
2. No action for the relief provided in this section shall be
commenced until the expiration of two years from the
creation of the special limitation or condition subsequent,
or the making of the agreement. The attorney-general shall
be a party to such action.
3. In determining whether relief shall be granted, and the
nature of such relief, the court shall consider and shall
make findings with respect to the following:
(a) whether the primary purpose of the special limitation,
condition subsequent or agreement to convey, reconvey
or surrender was to restrict the use of the land;
(b) whether the purpose of the restriction was to ensure
that the substantial value of the land or of the estate
subject to the special limitation, condition subsequent
or agreement, rather than the land itself, or such
estate itself, be devoted to and employed for a
benevolent, charitable, educational, public or
religious purpose.
If the findings with respect to (a) and (b) are such as
to make the following matters relevant or appropriate
for consideration, the court shall also consider and
make findings with respect to the following:
(c) whether the existence of the restriction is
substantially impeding the owner of the land, or of the
estate subject to the special limitation, condition
subsequent or agreement, in the furtherance of the
benevolent, charitable, educational, public or
religious purposes for which the land is held;
(d) whether the person or persons who would have a right of
entry, possessory estate resulting from the occurrence
of a reverter, or right to conveyance, reconveyance or
surrender of the land or estate in the event of breach
of the restriction at the time of the action will
suffer substantial damage by reason of extinguishment
or modification of the restriction, and, in such event,
whether damages or restitution of the land, or its
value, in whole or in part, should be awarded to such
person or persons.
4. The judgment of the court may include, in the discretion of
the court, an adjudication (a) that the restriction is
discharged in whole or in part, or that its tenor is
modified as provided in the judgment; (b) that the holder of
the land or estate therein subject to the restriction be
authorized or directed to convey, lease, mortgage or
otherwise dispose of the land or estate therein free of the
restriction and that the purchaser under such disposition
shall take free of the restriction; (c) directing the use to
which the avails of any such disposition shall be put; (d)
declaring the interests that the owners of the possibility
of reverter or right of entry, or persons having an interest
pursuant to the agreement, shall have in any property paid
for in whole or in part with the proceeds of the
disposition; (e) awarding damages for such injury as a party
to the action may sustain by reason of extinguishment or
modification of the restriction. The judgment may include
such other provisions as will in the opinion of the court
further the benevolent, charitable, educational, public or
religious purposes for which the land is held and such other
provisions as equity may require.
5. This section shall apply to a special limitation or
condition subsequent created or agreement made either before
or after September 1, 1958, except that it shall not apply
(a) where a right of entry or right to a conveyance,
reconveyance or surrender of the property has accrued or a
reverter has occurred prior to that date, or (b) where the
conveyance creating the restriction was made by or the
agreement creating the restriction was made with the United
States, the state of New York or any governmental unit,
subdivision or agency of the United States or the state of
New York.
