See, McManus v. Biddison, 152 Misc. 239, 272 N.Y.S. 199, (Sup.Ct., N.Y. County 1934) ("The execution of a release is, however, an act distinct from its delivery.") (citation omitted), aff'd, 242 A.D. 623, 271 N.Y.S. 1099 (1st Dept. 1934); First Federal Savings and Loan Ass'n of Syracuse v. Ivy Ridge, Inc., 76 Misc.2d 208 (Sup.Ct. Cayuga County 1973), aff'd 50 A.D.2d 1057 (4th Dept. 1975) (Holding that a release of mortgage was ineffective, for lack of delivery, where mortgagee had entrusted the mortgagor to deliver the release to a third party, but instead, mortgagor retained the release and subsequently had it recorded).
Plaintiff, the mortgagee, could validly assign to defendant its successful bid at the foreclosure sale and direct the Referee to execute and deliver the deed directly to defendant ( see, Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 411; Forest Hill Cemetery Assn. v. Sullivan, 235 App. Div. 269, 271). Defendant, however, submitted evidence in admissible form raising a factual issue whether a Referee's deed had been previously delivered to and accepted by plaintiff ( see, Ten Eyck v. Whitbeck, 156 N.Y. 341; see generally, Brackett v Barney, 28 N.Y. 333, 340-341; First Fed. Sav. Loan Assn. v. Ivy Ridge, 76 Misc.2d 208, 209, affd 50 A.D.2d 1057), thereby passing title to plaintiff ( see, Dorff v. Bornstein, 277 N.Y. 236, 241; Savings Bank v. 561-575 Delaware Ave., 201 A.D.2d 946), exhausting the Referee's authority under the judgment of foreclosure ( see, Mullins v. Franz, 162 App. Div. 316, 318), and leaving the Referee with no title to convey to defendant ( see, RPAPL 1353; Jorgensen v. Endicott Trust Co., 100 A.D.2d 647, 648).
Appeal from the Cayuga Supreme Court. Present — Marsh, P.J., Moule, Goldman, Del Vecchio and Witmer, JJ. [ 76 Misc.2d 208.] Judgment unanimously affirmed, with costs, upon the opinion at Special Term, Boomer, J.
This includes the right to ask the Court for relief, if it appears that the person's assets are in risk of being dissipated. Matter ofYoung, 76 Misc 2d 208 (Dutchess County Ct 1974). The Court notes that if S. E. M. had a guardian appointed pursuant to Mental Hygiene Law Article 81, that guardian could petition on her behalf for the establishment of a SNT in this Court.
Plaintiff, the mortgagee, could validly assign to defendant its successful bid at the foreclosure sale and direct the Referee to execute and deliver the deed directly to defendant ( see, Polish Nat. Alliance of Brooklyn v. White Eagle Hall Co., 98 A.D.2d 400, 411; Forest Hill Cemetery Assn. v. Sullivan, 235 App. Div. 269, 271). Defendant, however, submitted evidence in admissible form raising a factual issue whether a Referee's deed had been previously delivered to and accepted by plaintiff ( see, Ten Eyck v. Whitbeck, 156 N.Y. 341; see generally, Brackett v. Barney, 28 N.Y. 333, 340-341; First Fed. Sav. Loan Assn. of Syracuse v. Ivy Ridge, 76 Misc.2d 208, 209, affd 50 A.D.2d 1057), thereby passing title to plaintiff ( see, Dorff v. Bornstein, 277 N.Y. 236, 241; Savings Bank of Utica v. 561-575 Delaware Ave., 201 A.D.2d 946), exhausting the Referee's authority under the judgment of foreclosure ( see, Mullins v. Franz, 162 App. Div. 316, 318), and leaving the Referee with no title to convey to defendant ( see, RPAPL 1353 Real Prop. Acts.; Jorgensen v. Endicott Trust Co., 100 A.D.2d 647, 648). The key consideration is the power of the Referee to convey title.
Although the facts at issue were not comparable to those in the present case, the explanation given by the Appellate Division is quite explicit: "Plaintiff, the mortgagee, could validly assign to defendant its successful bid at the foreclosure sale and direct the Referee to execute and deliver the deed directly to defendant ( see, Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 411; Forest Hill Cemetery Assn. v. Sullivan, 235 App. Div. 269, 271). Defendant, however, submitted evidence in admissible form raising a factual issue whether a Referee's deed had been previously delivered to and accepted by plaintiff ( see, Ten Eyck v. Whitbeck, 156 N.Y. 341; see generally, Brackett v. Barney, 28 N.Y. 333, 340-341; First Fed. Sav. Loan Assn. v. Ivy Ridge, 76 Misc.2d 208, 209, aff'd 50 A.D.2d 1057), thereby passing title to plaintiff ( see, Dorff v. Bornstein, 277 N.Y. 236, 241; Savings Bank v. 561-575 Delaware Ave., 201 A.D.2d 946), exhausting the Referee's authority under the judgment of foreclosure ( see, Mullins v. Franz, 162 App. Div. 316, 318), and leaving the Referee with no title to convey to defendant ( see, RPAPL 1353 Real Prop. Acts.; Jorgensen v. Endicott Trust Co., 100 A.D.2d 647, 648)." ( Supra, at 1099.)
Although the facts at issue were not comparable to those in the present case, the explanation given by the Appellate Division is quite explicit: "Plaintiff, the mortgagee, could validly assign to defendant its successful bid at the foreclosure sale and direct the Referee to execute and deliver the deed directly to defendant (see, Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400, 411; Forest Hill Cemetery Assn. v Sullivan, 235 App Div 269, 271). Defendant, however, submitted evidence in admissible form raising a factual issue whether a Referee's deed had been previously delivered to and accepted by plaintiff (see, Ten Eyck v Whitbeck, 156 NY 341; see generally, Brackett v Barney, 28 NY 333, 340-341; First Fed. Sav. & Loan Assn. v Ivy Ridge, 76 Misc 2d 208, 209, affd 50 AD2d 1057), thereby passing title to plaintiff (see, Dorff v Bornstein, 277 NY 236, 241; Savings Bank v 561-575 Delaware Ave., 201 AD2d 946), exhausting the Referee's authority under the judgment of foreclosure (see, Mullins v Franz, 162 App Div 316, 318), and leaving the Referee with no title to convey to defendant (see, RPAPL 1353; Jorgensen v Endicott Trust Co., 100 AD2d 647, 648)." (Supra, at 1099.)