Johnstone v. Burhans
124 N.Y.S. 465
N.Y. Sup. Ct.
1910
Check Treatment
Giegerich, J.

On December 29, 1906, the defendant Mary A. Burhans executed her bond to the plaintiff to secure the payment of $2,000 on the 1st day of January, 1908, “with the privilege to said obligor of paying the *485whole of said .principal sum on or after July first, 1907, upon giving thirty days’ notice of her intention so to do.” A- mortgage was given to secure the payment of the sum specified in the bond. On or about the 17th day of October, 1907, the amount due on the bond and mortgage was paid to the plaintiffs attorney, since deceased. Subsequently it turned out that the satisfaction-piece given to the defendant Burhans at the time she paid the amount due was a forgery. On behalf of the mortgagor it is urged that the plaintiff’s attorney had possession of the bond and mortgage, and that such possession clothed him with indicia, of apparent authority sufficient to warrant the mortgagor in relying on such authority and paying the money to him.. Williams v. Walker, 2 Sandf. Ch. 325; Hatfield v. Reynolds, 34 Barb. 612.; Crane v. Gruenewald, 120 N. Y. 274; Central Trust Oo. v. Folsom, 167 id. 285. It is established by the evidence that the mortgage was in the attorney’s possession at the time of the payment; but it is not at all clear as to where the bond was at that time. There is some argument contained in the briefs as to whether the mortgage is not sufficient as indication of such authority without the bond, the contention being made on behalf of the mortgagor that under present day conditions the bond is no longer the principal thing and the security or mortgage the incidental thing, but that the situation is reversed, and now that so many bonds are given by dummies and attention is given by lenders so exclusively to the value of the property that the rule of the old decisions which based the apparent authority of an agent in such a case upon the possession both of the bond and the mortgage should be regarded as modified, and that possession of the mortgage alone should now be deemed to have such effect. It is unnecessary to pass upon this point, however, because, as I view it, the case must go against the mortgagor on another ground. Even in the case where an agent has actual authority to receive payment of an obligation he has no authority to receive it before the obligation is due. Smith v. Kidd, 68 N. Y. 130, 141; Schermerhorn v. Farley, 58 Hun, 66, and cases cited. In the present case the obligation was not due at the time payment was made. *486According to the terms of the bond the debt was due on the 1st day of January, 1908, with the privilege, however, of paying the same on or after July 1, 1907, upon giving thirty days’ notice of the mortgagor’s intention so to do. If such notice had been given to the mortgagee doubtless the obligation would have been payable on the 17th day of October, 1907, the date when payment was made. But no claim is made that such notice was ever given to the plaintiff. I can see no justification for extending the rule of apparent authority to such a situation. It may be just as between the debtor and creditor to hold that where the creditor leaves the evidences of the obligation in the" possession of an agent after the due date, such possession by the agent shall be deemed sufficient evidence of authority to receive payment. In such a case, if the creditor is unwilling to trust the agent to make collection for him it is quite within his power to take back into his own possession the evidences of the debt, and if he does not do so before maturity he has no just ground of complaint. In the present case, however, a decision against the creditor (the plaintiff) would have the effect of imposing upon her the duty of withdrawing the evidence of indebtedness from her attorney’s possession not only before the debt became due according to the date fixed in the instruments, but also before she had received the thirty days’ notice which she was entitled to if the debtor saw fit to accelerate the maturity of the loan. If such notice had been given there would have been ample time for the plaintiff to withdraw from the hands of her attorney the mortgage and also the bond if the fact was that it was in his possession, or if they could not have been obtained she would have had an opportunity to notify the mortgagor not to pay the money to her attorney. I recognize that it is a hard case for the mortgagor, who doubtless acted in good faith in making the payment, but as I view the case the blame rests upon her rather than upon the mortgagee for the unfortunate outcome. So far as concerns the defense of laches, there seems to have been no unreasonable delay on the part of the plaintiff. It would seem that she acted with reasonable promptness after the death of her former attorney and her discovery of the *487facts. Her former attorney died on April 10, 1908, and the action was commenced on July 17, 1908. Neither do 1 think that the claim filed against the estate of her former attorney is any bar to a recovery in this action. Such a claim is not a ratification of his authority, but proceeds upon the theory that he obtained it wrongfully, hut was, nevertheless, under obligation to turn it over to her, and that his estate is liable to her. Any recovery she might make from his estate would to that extent result- to the benefit of the defendants, and hence they have no good ground for complaint at her attempt to make such recovery. There should be judgment for the plaintiff, hut without costs. ■ The form of the decision aud judgment to be entered hereon will he settled upon the usual notice.

Judgment for plaintiff, without costs.