It is clear that, but for the Recording Act, the plaintiff would have taken no greater rights in the mortgage than his assignor had, and that any defense which Thomas, the mortgagor, and his grantee would have against a foreclosure by her could be set up as against him. But the question is whether, under the Recording Act (1 R. S. 756, § 1, revised by Real Prop. Law [Laws of 1896, chap. 547], § 241), the rights- acquired through the release have not been lost by the prior recording of the subsequent assignment. In the case of Baker v. Thomas (61 Hun, 17) this precise -question was' decided adversely to the appellants here. It was there held that a release of a portion of mortgaged premises was void as against a subsequent assignment of the mortgage which was first recorded. I do not find *245that that case has ever been questioned, nor do I find any decisions that conflict with the reasoning therein adopted. On the authority of that case the decision in this case must be affirmed, unless the fact that the railroad company was in full possession of its land and was using the same is to be deemed a sufficient notice to the plaintiff of the existence of the release. Upon that question the case of Baker v. Thomas may not be a conclusive authority, but the case of Briggs v. Thompson (86 Hun, 607), which was followed by the trial court, fully sustains the judgment here. In that case the possession by the purchaser was sufficiently full-and notorious to sustain an adverse user; yet it was held that, being derived primarily from the mortgagor, his occupation was not inconsistent with the existence of the mortgage lien, and was not such as would suggest to a prudent man that he claimed a title adverse to the mortgagee. I concur with that conclusion and with the reasoning upon which it is based.
It is further claimed by the appellant that the release having been left at the county clerk’s office for record, it must be considered as on record, and hence the plaintiff’s assignment could acquire no priority, and Mutual Life Ins. Co. of New York v. Dake (87 N. Y. 257) is cited as authority for such claim. In that case the first mortgage was actually recorded, but the clerk neglected to index it, and hence it is not a precise authority on the situation here. But. further than that the release here was not in fact left for record. The clerk was instructed to record it when certain papers, supposed to be necessary, were subsequently sent him. It does not appear that such papers were ever sent, and so the clerk seems to have entirely omitted recording the release. It does not seem to me that,, under such instructions, the omission to record it was the fault of the clerk.. It was the fault or neglect of the party who left the release there, and hence it must be treated as never having been left for record.
I conclude that the judgment should be affirmed, with costs.
All concurred, except Smith, J., dissenting.
Judgment affirmed, with costs.