Leon v. Anderson

This is a proceeding brought under article 78 of the CPLR to compel the Clerk of Nassau County *924to cancel of record a chattel mortgage executed by the petitioner on the ground that the mortgage instrument was forged.

A proceeding under article 78 may he maintained to enforce the performance of a duty specifically enjoined by law (Matter of Gimprich v. Board of Educ. of City of N. Y., 306 N. Y. 401, 406) which is similar to the relief formerly obtainable under a writ of mandamus (People ex rel. Desiderio v. Conolly, 238 N. Y. 326); but the remedy is not available where other adequate remedies exist (Matter of Coombs v. Edwards, 280 N. Y. 361, 364). The petitioner in this case does not show the existence of any statutory provision directing the County Clerk to expunge a public record where the instrument is claimed to have been forged. There is no statement that the mortgage did not comply with the statutory requirement governing its form for filing, and the County Clerk properly accepted the instrument. Under the circumstances, he is under no duty to cancel it of record. An article 78 proceeding is not the proper remedy by which to have the validity of the chattel mortgage determined, and this proceeding is premature in the absence of a judgment or order of the court declaring the chattel mortgage void.

The petition is dismissed without prejudice to such other remedy as the petitioner may be advised to pursue.