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clerk of a court, substitute, Clerk of the
Court, a court of said county, having by law a seal], do hereby certify that M. N., the officer taking the foregoing [or, annexed) affidavit, was at the time of the taking thereof a notary public (or other official title] in and for said county, and a resident thereof, and duly authorized by the laws of this State to take and certify the acknowledgment and proof of deeds to be recorded in this State;7 that I am well acquainted with the handwriting of said M. N. [or, that I have compared the signature to the foregoing jurat with the signature of said M. N. deposited in my office by him] and verily believe that the signature to said jurat is genuine.71 In testimony whereof I have hereunto set my hand and affixed Official my official seal [or, the seal of said court—or, seal. county] this
19 [Signature and official scal.]
FORM No. 21.
Jurat of affidavit, for use in New York, taken before a Judge, in Canada. 72
The above affidavit was subscribed and sworn to before me, the undersigned, the judge of the court of the county of
which is a court of record of the province of in the Dominion of Canada, and has a seal, at the court house in this day of
,19 [Signature and title of Judge.]
There is no sufficient verification without a certificate, where the statutes require the latter. Cream City Furn. Co. v. Squier, 2 Misc. 438, 21 N. Y. Supp. 972. The omitted certificate may be supplied by amendment. Lawton u. Kiel, 51 Barb. 30. But compare preceding case.
An error in the certificate in referring to the affidavit as an acknowledgment will be disregarded under Code Civ. Pro., § 723. Spencer v. Fort Orange Paper Co., 74 App. Div. 74, 77 N. Y. Supp. 251.
70 This clause as to the official's authority is necessary when the foreign official is a notary public, or other officer not specifically mentioned in section 249 of the Real Property Law as having authority by virtue of his
office. Turtle v. Turtle, 31 App. Div. 49, 52 N. Y. Supp. 857 ; Levy v. Levy, 29 Misc. 374, 60 N. Y. Supp. 455; Stanton v. U. S. Pipe Line Co., 90 Hun, 35, 35 N. Y. Supp. 629.
A defective certification is waived unless objected to when the affidavit is offered; the fact that such a preliminary objection was made and overruled should be recited in the order in order to present the question on appeal. Mix V. Andes Ins. Co., 74 N. Y. 53; Rogers v. Rogers 54 App. Div. 195, 66 N. Y. Supp. 512.
71 Brown v. Stilwell, 1 N. Y. St. Rep. 132.
72 Sustained in Ross v. Wigg, 34 Hun (N. Y.), 192. See Real Property Law, $ 250.
FORM No. 22.
Authentication thereof, by clerk.73
, y ss.: County of I, M. N., the clerk of the Court of the county of
in said province of , hereby certify that said
Court of the county of is an existing court of record in and for said province of , in the Dominion of Canada, and that said court has a seal; that E. F. was at the time of the taking of the annexed affidavit a judge of said court; that I am well acquainted with the handwriting of such judge, and verily believe the signature, E. F., to the above jurat, is his genuine signature. Witness my hand and the seal of said court, at the city of in said province of , this
day of , 19 S Seal of 2 I court. 5
[Signature and title of clerk.}
FORM No. 23. Jurat of affidavit, taken without, for use within, the States of Connecticut,
Maine, Massachusetts, New Hampshire or Vermont (before Commissioner for such State). STATE OF County of
[Name of place], [date]. Then personally appeared the above named
, and made solemn oath that the foregoing affidavit by him subscribed is true. Before me [signature and tille and seal of officer).
FORM No. 24. Jurat of affidavit taken without New Jersey for use within New Jersey:
(before Commissioner for New Jersey). Subscribed in my presence and sworn to before me on this day of
, 19 , at [name of place, town, county, and State], I being duly authorized under and by virtue of the laws of New Jersey to take the same.
[Signature, title and seal of officer.]
73 Under Real Property Law (L. 1896, c. 547), 8 261.
This form of certificate was sug. tained in Ross v. Wigg, 34 Hun (N. Y.), 192, under substantially similar
statutory requirements then existing, although the last clause of the clerk's certificate followed the language of the statute less literally than in the form given above.
ALLOWANCE OF STATE WRIT.
[This must be indorsed upon the writ, stating the date of the allowance.] 74
FORM No. 25.
The within writ allowed this
19 special term of the Supreme Court, held at the County Court House in the city of
, county of
[Signature of Justice.) Justice of the Supreme Court.
74 N. Y. Code Civ. Pro., & 1996.
75 In the case of all State writs the V. Y. Code of Civil Procedure requires the allowance to be indorsed by the presiding judge of the court by which the writ is awarded, or by the
judge who allowed the writ out of court, as the case may be. $ 1996.
If allowed by the court in banc, insert, before the signature, the words, “ By the court."
AMENDMENTS. (For limitations upon the power of the court, and special regulations affecting particular amendments, as, of Summons, Pleadings, Judgments, Provisional Remedies, Record on Appeal, etc., and as to Parties, see those subjects.]
The power to amend its process and pleadings is inherent in a court as a part of its ordinary jurisdiction. The statute, Code Civ. Pro., $ 723, is declaratory only."
The theory upon which an order may be granted to take effect, nunc pro tunc, is that some ruling has been made which was not properly, or which was improperly, entered. A court has no power to have a new order or ruling so entered, thus bringing into the record an element which did not exist."7 The facts must exist, and then if the record of them is incomplete or imperfect it may be amended. While a court may record an existing fact nunc pro tunc, it cannot record a fact as of a prior date when it did not then exist.78
FORMS. 26. Order permitting affidavit filed 31. Order amending warrant of atwith judgment-roll to be amended
tachment by reducing the by adding notary's signature.
amount thereof. 27. Affidavit to obtain order amend 32. Affidavit to obtain order to an
ing order by reciting an omitted nex by amendment an omitted paper.
clause in an order. 28. Notice of motion to amend order 33. Order to amend order to make it by reciting omitted paper.
comply with court rule. 29. Order amending order by recit 34. Order to amend by canceling and ing the use of omitted paper.
interlineation, 30. Order giving order retroactive
effect, and directing entry nunc
FORM No. 26. Order permitting affidavit filed with judgment-roll to be amended by adding
[From Fawcett v. Vary, 59 N. Y. 597.]
[After formal parts of order - see Form 101 — continue:] ORDERED, that the record of judgment in this action be, and
76 Christal v. Kelly, 88 N. Y. 285, 290; Matter of City of Buffalo, 78 id. 362, 370.
77 Wingrove 1. German Savings Bank, 2 App. Div. 479, 37 N. Y. Supp. 1092. 78 Guarantee Trust Co. v. Phila., Reading, etc., R. Co., 160 N. Y. 1.
the same is hereby, amended, nunc pro tunc, as of the date of the filing thereof, that is to say,
19 by adding to the jurat of the affidavit of A. B. the signature of M. N., notary public, the notary public before whom the said oath was taken.
FORM No. 27. Affidavit to obtain order amending order by reciting an omitted affidavit.79 [Caption as in Form 42.]
[State generally the proceedings in the cause and the former motion, as on an original motion.] ]
That deponent, as counsel for defendant, opposed said motion, and on the argument before the Special Term on said day of
19 deponent used and referred to an affidavit of M. N., verified on the
, a copy of which is hereunto annexed and made a part of this, affidavit; and deponent stated to the court portions of the contents of said affidavit. That the order entered upon said motion, and served upon deponent, omits any reference to the fact that the motion was opposed by said affidavit of M. N., and his affidavit has not been filed with the clerk of
county. The omission to file said affidavit since the decision of said motion, and to have it appear in the recitals of said order that such affidavit was used on behalf of defendant, was purely an accident and oversight on the part of deponent. Deponent is about to appeal from said order, and defendant will be unjustly prejudiced and will not be in a position to have fairly determined the appeal from said order unless the record upon appeal shows said affidavit of M. N., and that it was read by defendant upon said motion. [Jurat.]
[Signature.] FORM No. 28. Notice of motion to amend order by reciting omitted affidavit. [As in the notice of motion, general form -- Form No. 47 -as far as object of motion, and then indicate the desired amendment, as:] for an order correcting and amending the order entered
79 Adapted from Thousand Island Park Assoc. 1. Gridley, 25 App. Div. 499, 49 N. Y. Supp. 722, where the court held that defendant showed a manifest right to the amendment asked for, and that conditions attached to the granting of the amendment were erroneously imposed. See
also Matter of Post, 14 N. Y. Supp. 205, 38 St. Rep. 1, where it was held that a delay of six months in applying for the amendment did not constitute laches, when the motion for the amendment was made as soon as a motion to dismiss an appeal, because of the lack of such papers, was made.