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1. Whenever the owner of mortgaged property situate in this state shall be entitled, pursuant to the terms of the mortgage encumbering such property, to obtain the release of a portion thereof from the lien of such mortgage, then, upon (1) delivery by such owner to the mortgagee of a partial release from lien of mortgaged premises, in a form entitled to be recorded, describing the portion of the mortgaged premises so entitled to be released, together with the fees allowed by law for the taking of the acknowledgment of a deed, (2) proof that all requirements set forth in such mortgage as conditions precedent to the execution and delivery by the mortgagee of such partial release have been satisfied, and (3) payment, or tender of payment, to the mortgagee of all sums required under the term of the mortgage to be paid to obtain such partial release, such mortgagee must execute and acknowledge before a proper officer, in like manner as to entitle a conveyance to be recorded, the partial release theretofore delivered to such mortgagee or such other partial release from lien of mortgaged premises as may be required to be executed under the terms of the mortgage, which release shall be in recordable form.
2. Upon the failure or refusal of any such mortgagee to comply with the foregoing provisions of this section, any owner of the mortgaged premises may apply to the supreme court or a justice thereof, or to the county court or a judge thereof, in or of any county in which the mortgaged premises or any part thereof are situated in whole or in part, upon a petition, for an order to show cause why an order should not be made by such court releasing of record from the lien of said mortgage the parcel or parcels of land described in said release, and directing the register or clerk of any county in whose office the same may have been recorded to mark the same upon his records as released as to the parcel or parcels described in such order, and further ordering and directing that the debt or other obligation secured by the mortgage be reduced in the amount tendered or paid, upon condition that in the event such mortgage or part thereof is not paid, the sums tendered pursuant to the foregoing provisions of this section be paid to the officer specified by law to hold court funds and moneys deposited in court in the county wherein the mortgaged premises are situated in whole or in part for the purpose of paying said sum over to the mortgagee. Said petition must be verified in like manner as a verified pleading in an action in the supreme court and it must set forth the grounds of the application.
3. In any case where an actual tender, as provided in subdivision one of this section, cannot, with due diligence, be made, any owner of the mortgaged premises may apply to the supreme court or a justice thereof, or to the county court or a judge thereof, in or of any county in which the mortgaged premises, or any part thereof are situated in whole or in part, upon petition setting forth the grounds of the application and verified as aforesaid, for an order to show cause why an order should not be made by said court releasing of record the parcel or parcels described in said release from the lien of the mortgage, and directing the register or clerk of every county in which the mortgaged premises are located to mark the same upon his records as released as to the parcel or parcels described in such order and further ordering and directing that the debt or other obligation secured by the mortgage be reduced, upon condition that the prerequisites for obtaining such release set forth in subdivision one of this section and the sum of the mortgage required to be paid pursuant to the terms and conditions of said mortgage and fees allowed by law or the mortgage, be paid to the officer specified by law to hold court funds and moneys deposited in court in the county wherein the mortgaged premises are situated in whole or in part until such time as said sums may be claimed by the mortgagee.
4. Eight days' notice of the application for either of the orders provided for in subdivisions two and three of this section shall be given to the mortgagee. Such notice shall be given in such manner as the court or the judge or justice thereof to whom the petition is presented may direct, and said court or judge or justice may require such longer notice to be given as may seem proper. If sufficient cause be shown the court or judge or justice thereof may issue such order to show cause returnable in less than eight days.
5. Upon the return day of such order to show cause, the court, upon proof of due service thereof and on proof of the identity of the mortgagee and of the person presenting the petition, shall inquire, in such manner as it may deem advisable, into the truth of the facts set forth in the petition, and in case it shall appear that said sum or sums required to be paid pursuant to the terms and conditions of the mortgage and the fees allowed by law have been duly paid or tendered but not accepted, said partial release from lien of mortgage instrument has been duly presented for execution, or that such tender and presentation could not have been made with due diligence and the prerequisites for obtaining such release as set forth in subdivision one of this section have been met, then, in the event that portion of the lien of such mortgage required to be released pursuant to the terms and conditions thereof is not so released, the court shall make an order directing the sums so tendered, or in a case where such tender could not have been made as aforesaid, directing the sum or sums so required and the fees allowed by law, to be paid to the officer specified by law to hold court funds and moneys deposited in court in the county wherein the application herein is made, and directing and ordering that upon such payment the debt or other obligation secured by the mortgage be reduced and further directing the register or clerk of every county in which the mortgaged premises are located to mark said mortgage reduced of record upon the production and delivery to such register or clerk of a certified copy of the order and the receipt of such officer showing that the amount required by said order and which receipt shall be recorded, filed and indexed by any such register or clerk in the same manner as a certificate of discharge of a release from lien of mortgaged premises. Said receipt need not be acknowledged to entitle it to be recorded. The court in its discretion, when granting any such order after application therefor pursuant to subdivision two of this section, may award costs and reasonable attorneys' fees to the person making the application, in the absence of the showing of a valid reason for the failure or refusal to execute the partial release from lien of mortgaged premises and deliver the same. The money deposited shall be payable to the mortgagee, his representatives or assigns, less any court costs and reasonable attorneys' fees allowed by the court as herein provided which shall be paid to the owner of the mortgaged premises who has made application for the order herein referred to upon an order of the supreme court or county court, directing the payment thereof to such owner upon such evidence as to his right to receive the same as shall be satisfactory to the court.
6. Wherever any register or clerk shall record any order and receipt as hereinbefore specified, he shall mark the record of said mortgage, if same be recorded, as follows:
“Part of the premises herein described have been released from lien of this mortgage by order of the ____________ court, County of ____________, dated ____________ and filed ____________ a description of the property so released being contained in such order” and thereupon the lien of such mortgage shall be deemed to be released as to the premises so described in such order and the debt or obligation secured thereby shall be deemed to be reduced as provided in such order. Said register or clerk shall be permitted to charge for recording and filing said order and receipt, the same fees to which he is entitled for recording and filing a certificate of release of lien of mortgaged premises.
7. The word “mortgagee” whenever used in this section shall be construed to include the persons entitled to enforce or satisfy the mortgage and the personal representatives, successors and assigns, of such persons.
8. Nothing contained in this section shall limit or abridge any rights or remedies otherwise available at law or in equity to the owner of the mortgaged premises or any other person having an interest in such mortgaged premises.
Cite this article: FindLaw.com - New York Consolidated Laws, Surrogate's Court Procedure Act - SCP § 711. Suspension, modification or revocation of letters or removal for disqualification or misconduct - last updated January 01, 2021 | https://codes.findlaw.com/ny/surrogates-court-procedure-act/scp-sect-711/
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