Hartwell v. Riley

Merwin, J.: The- notice of pendency in question was filed in pursuance of the provisions of section 1670 of the Code of Civil Procedure. The effect of such notice is provided for by section 1671. That. states that, from the time of so filing the notice, the pendency of the action is constructive notice to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed as prescribed in the following-section; and that a person whose conveyance or incumbrance is subsequently executed or recorded is bound by all proceedings taken in the action, after the filing- of the notice, to the same extent as if he were a party to the action. By' section 1672 it is provided that the county clerk, with whom such notice is filed, must immediately record it in a book kept in his office for that. purpose and index it to the name of each defendant specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff. Under these provisions, it would seem that the notice of pendency becamp operative in favor of the plaintiff in the action from the time .it was filed, without reference to whether the clerk performed his duty to index (Mutual Life Ins. Co. v. Dake, 87 N. Y. 257; Bedford v. Tupper) 30 Hun, 174); and if so, the subsequent mortgage was destroyed by the judgment. The loss in this way to the plaintiff or his testator is hardly disputed. The question then arises whether the defendant is liable for the loss. The d.uty imposed by section 1672 upon the defendant as county clerk was not performed. The notice, was not indexed against the name of “Margaret Jones.” As a result of this failure the clerk, Van Alstyne, did not find and enter "upon the search, upon which Lobdell acted, the pendency of the action to set aside the deed to Margaret Jones. The loss to Lobdell was the natural result of the fault of the defendant. It is, however, claimed by the defendant that the trial court erred in holding that he-was liable for the acts.or omissions of his deputy. The duty to be performed was ministerial and was in the ordinary [158] course of business in the office. In such a case liability attached to the' defendant for the act or omission of his deputy. (2 S. & R. Neg. [5th ed.] § 590; Welddes v. Edsell, 2 McLean, 366; McNutt v. Livingston, 7 Smedes & M. [15 Miss.] 641.) The case of Van Schaick v. Sigel (58 How. Pr. 211; affd., 60 id. 122) is in the same direction, though based somewhat on the provisions of a special statute. The general statute which authorizes the county clerk to appoint a deputy also provides that the deputy holds his position during, the pleasure of the clerk. (The County Law, § 162, .chap. 686, Laws of 1892.) The trial court did not, we think, err in treatingthe act or omission of the deputy as the act of omission of the clerk. But the defendant says that he owed no duty to the subsequent mortgagee for the non-performance of which the plaintiff as the representative of the -mortgagee has a cause of action against him. “It is the established rule,in this State that where an individual sustains an injury by misfeasance or nonfeasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured.” (Bryant v. Town of Randolph, 133 N. Y. 70, 75.) If a public. officer,1 charged with the performance of ministerial duties, fails to discharge those duties with reasonable skill and care, he is liable for the damages resulting from such failure to. one Specially interested in the discharge of such duties. • (Olmsted v. Dennis, 77 N. Y. 378.) Within these principles, I see no good reason why there is not a basis for liability against the defendant. The defendant asked to go to the jury on the question whether, there was any negligence or want of care upon the part of plaintiff’s testator which contributed to the result. Mr. Lob.dell, before taking the mortgage, required a county clerk’s search to be obtained. ■ It was obtained and exhibited to him. It was an official search and showed that there was no incumbrance or defect in the title. , The mortgagor was in' possession. The mortgagee was not called upon to make further investigation. He had a right to rely upon the search, in the absence of actual notice of the pendency of the action. Mo such notice appears, b.ut rather to the contrary. But it is said that the clerk, Van Alstyne, was negligent in hot discovering the defendant’s mistake and that the- plaintiff’s testator was chargeable with such negligence. I.doubt the latter propósi [159] tion, but, assuming it to be true, Yan Alstyne had a right to believe that his predecessor had done his duty. He had a right to .believe that the letters “ wf.” did not mean or refer to the grantee, Margaret Jones, in the deed which was on record from Dewitt C. Jones prior to the filing of the notice. It does not appear that in that deed there is anything that indicates that the grantee is the wife of the grantor. Ho good reason is apparent for charging Lobdell with the knowledge that the mortgagor had of the pending suit. The limit of two years in the search undoubtedly was understood to refer only to mechanics’, liens, and the point that notices of pendency were to be looked for for only two years is not well taken: They were in fact looked for for a period prior to the one in question. We find no reversible errors in rulings upon evidence, or in refusing requests to go to the jury. All concurred. Judgment affirmed, with costs.