Pratt, J. The facts which show that the deed of Father McEvoy was delivered to and accepted by Cardinal McCloskey are so fully considered in the opinion of the special term that further discussion is uncalled for. It may well be, as claimed for defendant, that the delivery was not to the cardinal in person, but it is shown to be in the hands of his agent; and when his personal attention was called to the fact there was no effective disclaimer. The only question remaining is the validity of the release.
Whether a covenant in a deed in which a mortgage is assumed can be released by the immediate parlies without consent of the mortgagee is a question which is not entirely settled. The better opinion seems to be that suggested in 105 N. Y. 228, 11 N. E. Rep. 498, to the effect' that such release will be ineffectual.
As the right of the mortgagee does not depend upon privity of contract, but upon principles of equity arising from the situation, it is not easy to see how the right of the mortgagee should be affected by acts to which he is not a party. The special term decision to that effect is in harmony with the generally received opinion, and the judgment must be affirmed, with costs. Dykman, J., concurs.
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