Sup. Ct.) THOMAS V. ZAHKA 4. MORTGAGES 248-RIGHT OF ASSIGNEES TO ACT FOR OWN PROTECTION. 5. MORTGAGES SIGNOR. 262-WASTE BY ASSIGNEES-FAILURE TO GIVE NOTICE TO AS That the assignees were remiss in giving plaintiff notice of their act in exchanging or compromising the security for their own protection did not amount to waste. Rich, J., dissenting. Appeal from Trial Term, Kings County. Action by Esther Thomas against Alexander Zahka and another. From a judgment for plaintiff (99 Misc. Rep. 333, 164 N. Y. Supp. 193), defendants appeal. Judgment reversed, and new trial granted. Defendants on June 6, 1913, made a loan of $2,000 to one Plaisantin, and took as security a $3,500 bond and mortgage, which was a fifth lien on Brooklyn property. This bond to the plaintiff dated June 2, 1913, was payable in It was made by Messrs. three years with interest at 6 per cent. per annum. Gibbons, Stern, and Gessford, as owners. The prior liens aggregated $36,250. Plaintiff assigned this to defendants, with a participation agreement, reciting defendants' prior ownership therein up to $2,000 and interest, that plaintiff owned the residue of said mortgage debt, but that defendants' $2,000 interest is prior and superior to that of the plaintiff "as if the party of the second part held a first mortgage for $2,000 and interest and the party of the first part held a second mortgage and subordinate to secure the balance of the mortgage debt." "Third. That the party of the second part shall have all the rights of any holder of said bond and mortgage and is authorized to accept payment of said bond and mortgage and to execute a satisfaction piece therefor, and in the event of any default on said bond and mortgage to foreclose the same and receive the proceeds of the sale from the referee; but the party of the first part shall, in any and every event, have the right to an accounting for all money received by said party of the second part in excess of the ownership of the party of the second part in said bond and mortgage. All rights and authority given under this article by the party of the second part are irrevocable. "Fourth. That the party of the second part is to notify the party of the first part of any and every default on said bond and mortgage and of any and every foreclosure by making the party of the first part a defendant in any and every suit without further notice or demand, but the party of the second part shall be under no other obligation to protect the interest of the party of the first part under any such suit or upon any sale in any such foreclosure." No part of defendants' loan to Plaisantin has been paid, so that it was overdue in the year 1914. Up to March 20, 1915, defendants had received on account of interest on this $3,500 bond the sum of $383. Prior liens on the mortgaged premises then exceeded its value. On March 20, 1915, defendants satisfied this mortgage for $730 in money. Aland took a mortgage for $1,000 on other incumbered property, which $1,000 mortgage was subsequently lost and extinguished through foreclosure. though the complaint does not charge bad faith, and merely avers the satisfaction and discharge of such mortgage, plaintiff has been decreed $1,500, with interest and costs. Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, BLACKMAR, JJ. and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes A. M. Davis and Adolphus D. Pape, both of New York City, for ap pellants. Frank E. Johnson, Jr., of Brooklyn, for respondent. PUTNAM, J. [1-3] Defendants were vested with the title to this mortgage, and had the full right to protect their own superior interests. They did not become trustees for plaintiff. The two portions of the original debt were severed, as if secured by separate and successive mortgages. Notice to plaintiff by making her party to any foreclosure was, of course, necessary, since otherwise the decree and sale might be defective. Wiltsie's Mortgage Foreclosures, § 116. Defendants had agreed to pay over to, or account to, plaintiff for what she might be entitled to beyond defendants' $2,000 interest. They had the right to collect or exchange the security. Lowenfeld v. Wimpie, 139 App. Div. 617, 124 N. Y. Supp. 178; Id., 203 N. Y. 646, 97 N. E. 1108. In view of the amount of prior incumbrances, this $3,500 mortgage was speculative and precarious, depending, as it did, on future prospects, rather than on actual values. [4, 5] In the absence of bad faith, defendants were not obliged to wait till after the mortgage matured, with the possible extinguishment of the security, before acting for their own protection. Such acts as exchanging or compromising the security were within the ample powers conferred by the two instruments; defendants, however, being always answerable for bad faith or waste, or like impairment of the security. State Bank v. Smith, 155 N. Y. 185, 200, 49 N. E. 680. It would have been prudent to have given plaintiff notice of this step, but, if defendants were remiss in this respect, that alone did not amount to waste. As plaintiff simply averred a satisfaction of the mortgage, she did not show any ground for damages, since the mortgaged property was fully covered by prior liens. Had bad faith been charged, defendan's might have been called upon to justify their relinquishment of this security on the terms shown. The judgment should be reversed and a new trial granted, costs to abide the event. All concur, except RICH, J., who votes to affirm upon the opinion of Cropsey at Trial Term. (102 Misc. Rep. 136) PEOPLE ex rel. FISKE v. ÍNSPECTORS OF ELECTION OF CERTAIN DISTRICTS OF CITY OF MT. VERNON. PEOPLE ex rel. BRUSH v. SAME. (Supreme Court, Special Term, Westchester County. December 24, 1917.) 1. MANDAMUS 74(4)-SOLDIER'S VOTE-COMPELLING CANVASS. Where soldier had the right to vote in a certain district, but by mistake his ballot was sent to another district, mandamus will lie to compel delivery of such ballot to the proper board, and a canvass and return thereof by such board, the envelope containing the ballot not having been opened. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Sup. Ct.) PEOPLE V. INSPECTORS OF ELECTIONS 2. MANDAMUS 74(1)-SOLDIERS' VOTES-COMPELLING ACTION BY ELECTION BOARD. Where the board of inspectors did not rule upon a challenge by affidavit on information and belief to a war ballot, mandamus will issue directing the board to reconvene and determine the matter and reject or count the ballot. 3. MANDAMUS 3(10)—COMPELLING ACTION BY ELECTION BOARDS. The board of county canvassers cannot be compelled by mandamus to summon district inspectors for the purpose of correcting errors not appearing upon the face of the election returns and tally sheet, quo warranto being the only remedy, as the district inspectors are not permitted to impeach their own return. 4. ELECTIONS 186(1)-SOLDIERS' BALLOTS-IDENTIFICATION-STATUTE. Where a war ballot had correctly written in the blank space for mayor the name of a candidate, the intention was plain and the ballot was valid, although it had written upon it the name of the voter, in view of Soldiers' and Sailors' Law (Laws 1917, c. 815) § 6, providing "that no ballot shall be rejected as void where the intent of the voter is clearly apparent." 5. ELECTIONS 181-SOLDIERS' BALLOTS-NAME IN WRONG SPACE. Where, on a war ballot, the name of a candidate for mayor was written in a space provided for an entirely different officer, it could not be counted as his vote for such candidate for mayor. 6. ELECTIONS 216-SOLDIERS' BALLOTS-OATH AND JURAT. 1 As the oath on the envelope of a war ballot was filled out apparently in the voter's own handwriting and signed by him, the ballot was properly counted, although the jurat was not filled out and signed by an inspector of the army camp, where the right of the soldier to vote was not challenged, as it should be assumed that the ballot was sworn to before the proper officer, in view of Soldiers' and Sailors' Law, providing that no ballot shall be rejected where the intent of the voter is clear, and Election Law (Consol. Laws, c. 17), § 512 providing that no mere informality in the manner of carrying out the provisions of the article shall invalidate the election held under the same, or authorize the rejection of the returns, and that the provisions shall be liberally construed for the purposes expressed or intended. 7. MANDAMUS ~3(10)—EXTENT OF RELIEF. Where a ballot was not protested, it was not subject to review in a mandamus proceeding under Election Law, § 381, quo warranto being the proper remedy. Proceedings in mandamus by the People, on the relation of Edwin W. Fiske, against the Inspectors of Election of Certain Districts of the City of Mt. Vernon, and by the People, on the relation of Edward F. Brush, against the same respondents. Petitions granted in part and denied in part. Order modified App. Div., 168 N. Y. Supp. 779. George H. Taylor, Jr., of New York City, and Jeremiah D. Toomey and J. Henry Esser, both of Mt. Vernon, for Edward F. Brush. Frank A. Bennett and Arthur M. Johnson, both of Mt. Vernon, for Edwin W. Fiske. TOMPKINS, J. My conclusions in these matters, which relate solely to soldiers' votes under the election law, have been hastily reached, and necessarily so, because they were all submitted to me late on Monday afternoon, and it seems necessary that some of the questions be decided in time for the reconvening of the board of county canvassers on Wednesday, with Christmas Day intervening. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] The Diefendorf ballot was disposed of on the argument, and the court now adheres to that decision, which was that the inspectors of election district No. 5 should deliver the sealed envelope containing that ballot to the inspectors of district No. 4, in which concededly the soldier resided and had a right to vote, and that the inspectors of district No. 4 should reconvene and canvass said vote and make a supplemental return thereof. This seems to me the proper disposition of this ballot. By mistake it went to district No. 5, and when it was found by the inspectors in that district the envelope containing the ballot was not opened, and the ballot was not canvassed because it was known that the soldier was not a voter in that district. The envelope was preserved intact, and in that form the court directed that it be delivered to the inspectors of district No. 4 to be opened, canvassed, tallied, and returned. [2] A ballot in district No. 4 of the Fourth ward was not counted by the inspectors in that district because the right of the voter, Louis Caridieo, was challenged by an affidavit filed with said inspectors, which alleged, upon information and belief, that the soldier was not of lawful age. It was the duty of the board of inspectors to judicially determine whether this soldier was a qualified voter and such a determination was never made. The inspectors simply received the affidavit, which was in the nature of a challenge, and did not pass upon the voter's qualifications, and my opinion, as expressed from the bench yesterday, to the effect that it was the duty of the inspectors to rule upon the challenge and then receive or reject the vote, and, if received, to count it for the candidates voted thereon, and if it were determined that the soldier had not a right to vote, then to destroy the ballot, is confirmed by my subsequent consideration of the case. An order will therefore be made directing the inspectors of this district to reconvene and determine whether Caridieo was a qualified voter, and, if he was, to count the ballot and make a supplemental return thereof. [3] The return of the inspectors from district No. 3 of the Third ward shows eight votes for Brush and five for Fiske. The claim is now made on behalf of Fiske, and is supported by the affidavits of the two inspectors, that an error was made in returning these votes, and that, as a matter of fact, Fiske had eight votes and Brush five; and it is sought in this mandamus proceeding to compel a correction of the returns. The General Election Law gives the county canvassers a right to summon the district inspectors of election for the correction of clerical errors. This, however, refers only to errors that may appear upon the face of the returns or tally sheet, or both; and undoubtedly the board of county canvassers can be compelled by mandamus to summon district inspectors for the purpose of making such corrections; but in this instance no error or omission appears upon the face of the returns or the tally sheet. The claim is made in the first instance by the district inspectors, and they say that they made a mistake, but they are not permitted to impeach their own return, nor has the court power in this proceeding to direct the opening of the ballot box and a recount of the ballots. The relator's only remedy is by an action in quo warranto, and to lay the basis for such an action, he may, upon proper appli cation to the court, obtain an order for the opening of the ballot box and an inspection and examination of its contents. It seems to me that there ought to be a simpler, quicker, and less expensive method of correcting an error of this character than a quo warranto action, which requires the consent of the Attorney General, and involves the delay and uncertainty incident to a jury trial, and it was for that reason that I suggested at the hearing yesterday that all technicalities and obstacles should be laid aside, and the court on this application be given power to direct the opening of this ballot box for an accurate counting and return of the ballots. The application for at writ of mandamus with respect to this district will therefore be denied. [4] Next we have three ballots from the second district of the Fourth ward which were counted for Fiske. These ballots were protested and are properly before the court under section 381 of the Election Law. One of these ballots has written upon it in lead pencil, in the left-hand corner of the top of the ballot, the following: "I, Patrick W. McCarthy, of 7 Short Street, Mt. Vernon, N. Y., votes the straight Democratic ticket. Patrick W. McCarthy, 7 Short Street, N. Y." In a blank space above the block at the foot of the second column headed "City Offices" is written in lead pencil, "I vote the straight Democratic ticket of Mt. Vernon, N. Y., Patrick W. McCarthy, 7 Short Street, Mt. Vernon, N. Y;" and in the blank space under the heading "City Offices" the voter has correctly written the name "Edwin W. Fiske" in the blank space for mayor, so that this ballot would unquestionably be a good vote for Fiske were it not for the writings and marks upon it indicating that it was voted by Patrick W. McCarthy, and under the General Election Law it would be void as a marked ballot; and the question is whether any different rule should be applied to the votes of soldiers and sailors under chapter 815 of the Laws of 1917. That law provides (section 6): "After all such ballots shall have been cast, said board of inspectors of election shall immediately proceed to canvass the same as provided by law, except that no ballot shall be rejected as void where the intent of the voter is clearly apparent." Under this provision of the Soldiers' and Sailors' Law, it seems to me that this vote must be counted for Edwin W. Fiske, because the intent of the voter "is clearly apparent." I know of no method by which McCarthy could have more clearly and positively made known his intention to vote for Mr. Fiske for mayor. He declared his intention in three separate and positive statements upon the ballot. Apprehensive perhaps that his intention might not be clearly manifested by writing the candidate's name in the blank space provided for that purpose, he emphasized his choice and reiterated it by writing in two other places upon the ballot his intention to vote for the Democratic candidates, of which Mr. Fiske was one; and the law says that "no ballot shall be rejected as void where the intent of the voter is clearly apparent." Section 6. My interpretation of those words is that no ballot which under the General Election Law would for any reason be void shall be rejected under this law if the intention of the voter is clearly 168 N.Y.S.-26 |