#### The People of the State of New York ex rel. Title Guarantee and Trust Company, Respondent, *v.*Leonard Ruoff, as Clerk of the County of Queens, Appellant.

Second Department,

December 31, 1913.

Tax — refusal of county clerk to discharge mortgage until payment of tax—mandamus to compel discharge.

A county clerk may refuse to cancel a mortgage notwithstanding a proper satisfaction piece is tendered until the full amount of the tax thereon is paid.

Where a county clerk has been advised by the State Board of Tax Commissioners that a certain mortgage is taxable and such information has also been communicated to the mortgagee, a peremptory writ of mandamus should not be issued to compel the county clerk to record a certificate of satisfaction and discharge the mortgage, especially where the State Board of Tax Commissioners are not made parties.

Appeal by the defendant, Leonard Ruoff, as clerk, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 26th day of June, 1913, granting an application for a peremptory writ of mandamus requiring the appellant to record a certificate of satisfaction of a mortgage and cancel and discharge the said mortgage of record.

*Robert P. Beyer, Deputy Attorney-General [Thomas Carmody, Attorney-General,*with him on the brief], for the appellant.

*Arthur P. Hilton,*for the respondent.

Burr, J.:

Much might be written in support of the contention that the mortgage for $165,000 made by the Embo Land Company to the Title Guarantee and Trust Company, which was dated on December 3, 1912, and recorded on December fifth of the same year, was given as a *“*supplemental mortgage ” to the mortgage for the same amount given by the Hartley Realty Corporation to the said title company, which was dated July 30 and recorded upon August 2, 1912, and that it was given for the purpose of *“*perfecting the previously recorded mort*820gage,” and was a “ contract or agreement by which the indebtedness secured by any mortgage is increased or added to.” (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], §§ 250, 255.) If such is the fact the mortgage was taxable only “upon the amount of such increase or addition.” (Id. § 250.) Notwithstanding that the instrument was recorded in the first instance without the collection of any tax, if it is the case that a tax or a greater amount of tax than has been collected is actually due and payable thereon, the county clerk is justified in refusing to cancel such mortgage, notwithstanding a proper satisfaction piece is tendered to him, until the full amount of such tax is paid. *(Mutual Life Insurance Co.*v. *Nicholas,*144 App. Div. 95; *People*v. *Gass,*206 N. Y. 609.) It appears from the answering affidavit interposed by him, which for the purposes of this application must be taken to correctly state the facts *(People ex rel. Lindgren*v. *McGuire,*151 App. Div. 413; *Matter of Whitten,*152 id. 506), that in the interval between the recording of the mortgage in question and the tender of the satisfaction piece, the State Board of Tax Commissioners examined the mortgage made by the Hartley Eealty Corporation to the Title Guarantee and Trust Company and recorded as above set forth, and under serial number H1329, and also the mortgage made by the Embo Land Company to the said title company and recorded under serial number H5308, and also the statement accompanying the latter mortgage and filed at the time when said mortgage was recorded, in which exemption from tax was claimed, and determined that the latter mortgage was taxable at its face value, and notified the county clerk to collect the amount of such tax from the said title company. It also appears that such decision was communicated to the title company, the relator in these proceedings. Under such circumstances mandamus is not a proper remedy. Such writ issues only when there is a clear legal right to be enforced and when there is no other adequate or legal remedy to obtain the relief sought. *(People ex rel. Lehmaier*v. *Interurban St. R. Co., 177*N. Y. 296.) It will not issue to control the determination of a board or officer vested with power to decide that property is subject to taxation and as to the assessment or application thereof. (26 *821Cyc. 323 *d,*324 *e.)*By express provision of the statute the determination of the recording officer upon the question of exemption is made reviewable by the State Board of Tax Commissioners. (Tax Law, *supra,*§ 255.) In this case, if in fact the mortgage is taxable, the county clerk may be held in an action for breach of the condition of his official bond arising from failure to collect this tax when due. (Tax Law, *supra,*§ 263; *People*v. *Gass, supra.)*In the exercise of a wise discretion this court should withhold its writ against him in a proceeding in which the State Board of Tax Commissioners are not parties. In *Matter of Mechanics’ Bank*(156 App. Div. 343; affd., 209 N. Y. 526) the State Board did intervene in the proceedings. Although its right to do so may not be free from doubt, the point was not raised either in this court or in the Court of Appeals, and it must be considered that the decision then made is binding upon it as well as the register of the county, the other party thereto. In the case now under consideration no such effect could be claimed for any order that might be made herein.

The order granting the peremptory writ of mandamus should be reversed, with ten dollars costs and disbursements, and the motion for a peremptory writ denied, with fifty dollars costs.

Jenks, P. J., Thomas, Rich and Putnam, JJ., concurred.

Order granting peremptory writ of mandamus reversed, with ten dollars costs and disbursements, and motion for a peremptory writ denied, with fifty dollars costs.