| N.Y. Sup. Ct. | Oct 7, 1867
The executors had no notice, actual or constructive, of the assignment to the plaintiff. It is no answer to say, that the mortgages were recorded after the execution of the assignments, and that- therefore the latter could have contained no references to the liber in the register’s office. This was not the fault of the defendants, but of the plaintiff. When he became the owner of the mortgages he was entitled at once to the possession of them, and he should have required that the assignment should contain a precise reference by a description of the property or otherwise, so that the register could identify them, and he would then be able, on the recording of the mortgages, to note the assignments in the proper place. If he refused, I presume, the court would compel him to do so. At all events, the plaintiff has failed in using diligence on the subject. When he found that the references in the assignments were so deficient, he could have done something more than he has done to give notice of them to the defendants.
I hold, also, that the defendants may set off all the amounts of prior liens paid by them ; and these amounts, it appears, greatly exceed the value of the lots in question.
There must be judgment for the defendants, with costs.
Clerke, Justice.]