N.Y. Real Property Law § 321: Recording discharge of mortgage

§ 321. Recording discharge of mortgage. 1. The recording officer shall

mark on the record of a mortgage the word "discharged" when there is

presented to him a certificate or certificates signed as hereinafter

provided, and acknowledged or proved and certified in like manner as to

entitle a conveyance to be recorded, specifying that the mortgage has

been paid or otherwise satisfied and discharged.

(a) When it does not appear from the record that any interest in the

mortgage has been assigned, the discharge shall be signed by the

mortgagee or by his personal representative.

(b) When it appears from the record that the mortgage has been

assigned, whether or not the assignment was made as collateral security,

the discharge shall be signed by the person who appears from the record

to be the last assignee thereof or by his personal representative.

(c) When the mortgage or an assignment thereof names two or more

persons as mortgagees or assignees, the discharge shall be signed by the

person or persons designated by the mortgage or assignment to receive

payment of the mortgage debt or to give full acquittance and discharge

therefor. When no such person or persons are designated by the mortgage

or assignment, the certificate of discharge shall be signed by all of

the persons named, in the mortgage or assignment, as mortgagees or

assignees, as the case may be, or by their personal representatives, if

the mortgage or assignment (i) specifies their respective interest in

terms of a sum of money, or in terms of a fraction or percentage, or

(ii) states that such persons shall share equally in, or shall have

equal shares in the mortgage, or (iii) describes such persons as tenants

in common of the mortgage. When it appears from the record that the

mortgage is held by trustees, the certificate of discharge shall be

signed by a majority of such trustees or of the survivors of them or by

the survivors or survivor of them, unless the instrument creating the

trust provides otherwise. Except as required above, the discharge may be

signed by any one of the persons named in the mortgage or assignment, as

mortgagees or assignees, as the case may be, or by the personal

representative of the last survivor of them. If the mortgage or

assignment states that the persons named therein as mortgagees or

assignees shall hold the mortgage jointly, or describes such persons as

joint tenants or tenants by the entirety of the mortgage, or expressly

creates a right of survivorship among them, the discharge may be signed

by any one of such persons or by the personal representative of the last

survivor of them notwithstanding that the mortgage or assignment

specifies their respective interests in the mortgage or states that they

shall share equally or have equal shares therein.

(d) When the mortgage has been partially assigned, the certificate of

discharge shall be signed by all of the persons, or their personal

representatives, who in the aggregate are the holders of all portions of

the mortgage, including each partial assignee, and the assignor in case

any portion of the mortgage has not been assigned; provided, however,

that if any partial assignment names two or more persons as assignees,

the person or persons who may sign the certificate discharging such

partial interest shall be determined in accordance with the provisions

of paragraph (c) of this subdivision.

(e) Whenever two or more persons are required to execute a certificate

of discharge as provided in this subdivision, there may be presented in

lieu of such certificate, separately executed certificates of discharge

as to the respective interests of each in the mortgage so that together

the several certificates purport to discharge the entire mortgage.

(f) In place of any of the persons specified in paragraphs (a), (b),

(c) or (d) of this subdivision, a certificate of discharge of the

mortgage or of any interest therein may be signed (i) by an agent who

has been authorized by any such person to demand or receive payment or

to give a certificate of discharge of the mortgage by a power of

attorney, provided such power of attorney is of record in the office

where the mortgage is recorded, and no instrument of revocation has been

recorded; or (ii) by any person in whom title to such mortgage or to

such interest, or authority to act on behalf of or in exercise of the

right or power of the holder of such mortgage or of such interest is

vested, in a fiduciary capacity, by virtue of an order or decree of a

court having jurisdiction thereof, including, but not limited to, the

guardian of a minor, the committee of an incompetent person, or the

conservator of a conservatee, whether domestic or foreign, and a

receiver in bankruptcy or trustee in bankruptcy. A certificate executed

by any person specified in clause (ii) of this paragraph shall recite

the name of the court and the venue of the proceedings in which his

appointment was made, or the order or decree vesting him with such title

or authority was entered.

(g) If the mortgage is stated in the certificate of discharge to have

been taken by the noncitizen property custodian under and pursuant to

the trading with the enemy act adopted by the United States congress,

and approved October sixth, nineteen hundred sixteen, or any act

amendatory thereof, or supplemental thereto, such certificate may be

executed by such noncitizen property custodian or such person as the

president may appoint to give full acquittance and discharge for money

or property belonging to an enemy or ally of an enemy which may be

conveyed, assigned, delivered or transferred to said noncitizen property

custodian, with like effect as if the same had been executed by the

mortgagee, or the personal representative or assignee of such mortgagee.

Such certificate may be recorded, and such certificate, the record

thereof and a certified copy of such record may be introduced in

evidence in all courts of this state.

2. (a) The recording officer shall record and file such certificate or

certificates together with the certificates of acknowledgment or proof,

and shall note on the record of the mortgage the book and page

containing such record of such certificate or certificates or the serial

number of such record in the minute of the discharge of such mortgage,

made by the officer upon the record thereof. The provisions of this

paragraph shall not apply to the county of Suffolk, if the block method

of index is in use, or a separate index of satisfactions recorded is

maintained.

(b) The recording officer shall also record every other instrument

relating to a mortgage which is presented to him, acknowledged or proved

in like manner as to entitle a conveyance to be recorded, including

certificates purporting to discharge a mortgage or an interest therein

which are signed by persons other than those specified in the first

subdivision of this section, and also including, but not limited to,

assignments, releases, partial discharges, reductions, estoppel

certificates, extensions, discharges of partial interest and partial

discharges of partial interest, regardless by whom any such instrument

has been executed. When any such instrument has been recorded, the

recording officer, except in counties where the block method of indexing

is in use, or in Suffolk county, if a separate index of said instruments

is maintained, shall enter a minute upon the record of the mortgage to

which such instrument relates, indicating the nature of such instrument

and the book and page where it has been recorded or the serial number of

such record.

3. Every certificate presented to the recording officer shall be

executed and acknowledged or proved in like manner as to entitle a

conveyance to be recorded. If the mortgage has been assigned, in whole

or in part, the certificate shall set forth the date of each assignment

in the chain of title of the person or persons signing the certificate,

the names of the assignor and assignee, the interest assigned, and, if

the assignment has been recorded, the book and page where it has been

recorded or the serial number of such record; or if the assignment is

being recorded simultaneously with the certificate of discharge, the

certificate of discharge shall so state. If the mortgage has not been

assigned of record, the certificate shall so state.

No certificate presented to the recording officer shall purport to

discharge more than one mortgage, except that one certificate may

purport to discharge two or more mortgages where the certificate states

that one of such mortgages corrects, perfects or modifies the other

mortgage or mortgages, or spreads the lien of the other mortgage or

mortgages over the property subject to the lien of such mortgage, or

consolidates the lien of the other mortgage or mortgages with the lien

of such mortgage to constitute a single lien, or where the certificate

states that the liens of the mortgages which the certificate purports to

discharge have been so spread or so consolidated by a separate

instrument and such instrument has been recorded; provided that in such

case the certificate of discharge shall identify and describe each

mortgage which it purports to discharge, in a separate paragraph, in the

same manner and with the same particularity, and setting forth the same

information with respect to assignments thereof, as would be required

for a separate certificate discharging that mortgage, and shall also

state, in a separate paragraph for each instrument, the date of any such

separate instrument by which the liens of the mortgages have been spread

or consolidated, the names of the parties thereto, and the book and page

where it has been recorded or the serial number of such record. In any

such case, except where otherwise expressly provided by law, the fee or

fees which the recording officer is entitled to receive for filing and

entering a certificate of discharge of a mortgage and examining

assignments of such mortgage shall be payable with respect to each

mortgage which the certificate purports to discharge, to the same extent

as if a separate certificate of discharge had been filed for such

mortgage.

4. After the record of the mortgage has been marked with the word

"discharged," the recording officer shall make and deliver to any person

tendering the lawful fees therefor, his certificate setting forth the

names of the mortgagor and the mortgagee, the book and page at which,

the date when such mortgage was recorded, and the date on which the

record of such mortgage was so marked, except in a county where

recording is done by microphotography or photostating in the manner

permitted by law, in which case, after microphotography or photostating,

such certificate of discharge and the certificates of its acknowledgment

or proof shall, in lieu of filing as provided in paragraph (a) of

subdivision two of this section, be returned to the party leaving same

for record.

5. The term "personal representative" as used in this section shall

include the following:

(a) An executor, administrator or voluntary administrator or one of

two or more executors, administrators or voluntary administrators,

whether domestic or foreign, including the public administrator, and an

ancillary administrator appointed in this state. A certificate executed

by any such personal representative shall recite the name of the court

and the venue of the proceedings in which his letters testamentary or of

administration were issued.

(b) All of the distributees of a person dying intestate for whom no

administrator shall have been appointed, provided that two years shall

have elapsed since the date of death of such intestate. A certificate

executed by such distributees shall recite the date of death of the

intestate, his place of residence at the time of death, the fact that he

died intestate, that no administrator has been appointed and that they

constitute all the distributees of the intestate.

6. The provisions of this section authorizing the recording officer to

mark on the record of a mortgage the word "discharged" shall not be

deemed to enlarge, diminish or alter the legal effect which a

certificate executed by any person or persons, or any payment made by

the mortgagor or other transaction with respect to the mortgage or the

mortgage debt, would otherwise have upon the rights of the mortgagor or

of any person claiming a right or interest in the mortgage, the mortgage

debt or the property subject to the mortgage.

7. In a county in which recording is accomplished by microfilm process

and in which a block index of mortgages is also maintained it will not

be necessary to mark the record of the mortgage "discharged", but it

will be deemed sufficient compliance with this section if there is

entered upon the block index of such mortgage the date of filing and the

serial number of the certificate effecting the discharge.

7-a. If in any county, recording is accomplished by microfilm process

and a separate index for satisfactions recorded is maintained or in

which a block index of mortgages is also maintained it will not be

necessary to mark the record of the mortgage "discharged", but it will

be deemed sufficient compliance with this section if there is entered

upon the index of such mortgage the date of filing and the serial number

of the certificate effecting the discharge.

8. Certificates of discharge of mortgage and certificates of their

acknowledgment or proof heretofore or hereafter recorded and filed, may

be returned personally or by mail to the party leaving same for record

or destroyed after microfilming or photostating where proper indices are

maintained.