N.Y. Real Property Actions & Proceedings Law § 1931: Discharge of record of ancient mortgages presumed paid

§ 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.