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ACKNOWLEDGMENTS AND PROOFS.a
Any written instrument, except a promissory note, a bill of exchange, or a last will and testament, when acknowledged or proved and certified so as to entitle it, if a conveyance, to be recorded in the county where it is offered, is receivable in evidence without further proof.
The certificate raises a presumption of due execution, but this is not conclusive;" and if it appears that the subscribing witness making proof of execution was interested or incompetent, the instrument will not be received until established by other competent proof.3
A certificate of acknowledgment before a commissioner of deeds, justice of the peace, or notary public, has no effect outside of the city or the county of the officer's residence, unless the county clerk's certificate to officer's authority and signature is also attached.*
The acknowledgment or proof may be made at any time after execution, if before instrument is offered in evidence.5
An attorney in an action cannot take an acknowledgment to be used therein, nor can a party to an instrument take the acknowlelgment of another party; but relationship between party and officer does not disqualify.
a The practitioner will notice that much of the text upon this subject, and upon the succeeding subject of aflidavits, appearing in the first edition, has been omitted. The matter omitted consists, however, of propositions so well understood as to be considered of but little present utility--while the saving of the space for other more essential additions to text and forms has been advantageous.
IN. Y. Code Civ. Pro., 88 935, 937. An instrument is not “ duly acknowledged” unless there is, besides the oral acknowledgment, a written certifi. cate thereof. Rogers 1. Pell, 154 N. Y. 518.
2 Uvalde Asphalt Paving Co., 1°. New York, 99 App. Div. 327, 91 N. Y. Supp. 131 (holding that the presumption of due execution must be weighed against any evidence given to rebut it).
3 N. Y. Code Civ. Pro., 8 936: McKay v. Lasher, 121 N. Y. 477.
4 Real Property Law (L. 1896, c. 547), 8 259. By special act notaries in New York county, and counties adjoining, may extend their authority over the adjoining counties.
5 Holbrook 1. N. J. Zinc Co., 57 N. Y. 616; Wetterer v. Soubirous, 22 Misc. 739, 49 N. Y. Supp. 1043.
6 Bliss v. Molter, 8 Abb. N. C. (N. Y.) 241; Armstrong v. Combs, 15 App. Div. 246, 44 N. Y. Supp. 171; Lynch v. Livingston, 6 N. Y. 422; People er rel. Erie R. Co. v. Board R. R. Com’rs, 105 App. Div. 273, 93 N Y. Supp. 584.
FORMS. 1 Certificate of acknowledgment of commissioner of deeds for New individual, taken within the
York. State (under N. Y. Statutes). 8 Certificate of acknowledgment be? – by corporation.
fore U. S. consular agent. 3 - by partner, on behalf of firm. 9 Certificate of authority of officer 4 – by executor, trustee, or other
of another State taking ac. representative.
knowledgment or proof by vir5 — by attorney in fact.
tue of the laws of his residence 6 Certificate of proof by subscribing
(under N. Y. Statutes.) witness, within the State (under 10 Certificate of acknowledgment be. N. Y. Statutes.)
fore judge of court of record in 7 Certificate of acknowledgment, or
Canada (under N. Y. Statutes.) proof, in another State before a
FORM No. 1. Certificate of acknowledgment of individual, taken within the State. (Under
N. Y. Statutes.)?
STATE OF NEW YORK, 1 ss.: 8 County of
On this day of , 19 , before me personally came* A. B. [C. D. and E. F.], to me known and known to me to be the person [or, persons, or, one of the persons] described in and who executed the within [or, above, or, annexed] 10 instrument,11 and acknowledged to me that he [or, if more than one acknowledge, severally acknowledged to me that they] executed the same.
(Signature and office of officer taking acknowledgment.]
7 The form of this certificate, while substa ntially similar in the various jurisdictions, should not be used in other States without reference to local statutes. See, for N. Y., Jackson r. Seeber, 50 Misc. 479.
8 See notes to Form 14. In Rogers t. Pell, 47 App. Div. 240, 62 N. Y. Supp. 92; aff'd, 168 N. Y. 587, it was held that oral evidence is competent to show that the acknowledgment was taken in a different venue.
9 The notary must certify to his knowledge of the identity of the person appearing with that of the per son who is described in and who executed the instrument. See Carolan v. Yoran, 104 App. Div. 489, 93 N. Y. Supp. 935 (and cas. cited).
10 This certificate need not be written upon but may be attached to the acknowledged instrument. Real Property Law (L. 1896, c. 547), 8 255.
11 A certificate is fatally defective which fails to show that the notary knew the person appearing to be the one described in and executing the instrument. Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 810; Paolillo v. Faber, 56 App. Div. 241, 67 N. Y. Supp. 638.
Where the party used the initial only of his Christian name when signing the instrument, the fact that his name was written in full in the certificate of acknowledgment was held immaterial. Paxton v. Ross, 89 Iowa, 661.
FORM No. 2.
$88.: County of
On the day of , in the year 19 , before me personally came A. B., to me known,13 who, being by me duly sworn did depose and say that he resided in
; that he is the (president or other officer] of the [name of corporation), the corporation described in, and which executed the above instrument; that he knew the seal of said corporation ; that the seal af
is the Corde depose and save me known, 13 war 19
affixed by order of the board of directors of the said corporation, and that he signed his name thereto by like order.
[Signature and office of officer taking acknowledgment.]
FORM No. 3.
[Sustained in Klumpp v. Gardner, 114 N. Y. 153.]
, 19 , before me personally came A. B., a member of the firm of B. & C., described in the foregoing instrument, to me known, and known to me to be a member of the said firm, and the person who executed the said instrument, and acknowledged to me that he executed the same on behalf of said firm.15
[Signature and title of officer.]
12 V. Y. Laws of 1896, c. 547, § 258 (Real Property Law).
13 In Rogers v. Pell, 47 App. Div. 240, 62 N. Y. Supp. 92; aff’d, 168 N. Y. 587, a failure to certify to per sonal knowledge was held not to vitiate certificate under statutes as then existing.
14 The certificate should show by which member of the firm the signature was made and acknowledged. Sloan v. Owens, etc., Machine Co., 70 Mo. 206,
15 Where the partner's authority
to act for the firm does not spring from the partnership relation, but from express authorization from the other partners, e. g., the making of a general assignment for the benefit of creditors, there may be added, “and under and in pursuance of authority given by the members of said firm." See Hooper v. Baillie. 118 N. Y. 413. But such a statement of authority was considered unnecessary in National Bank of Troy v. Scriven, 63 Hun, 375, 18 N. Y. Supp. 277.
FORM No. 4.
STATE OF NEW YORK, Loc.
, 19 , before me personally came A. B. [state representative character, as, executor of the last will and testament of M. N., deceased), to me known, and known to me to be the person described in, and who executed the foregoing instrument, and acknowledged to me that he executed the same as such [executor) aforesaid.
[Signature and title of officer.]
FORM No. 5.
, 19 , before me personally came A. B., attorney in fact for C. D., the person described in the annexed instrument, said A. B. being to me known, and known to me to be the person who executed said annexed instrument,17 and acknowledged to me that he executed the same on behalf of said C. D. and as his attorney in fact.
FORM No. 6. Certificate of proof by subscribing witness, within the State.18 (Under N. Y.
Statutes.)' [Venue, as in Form No. 1.] On this day of
, 19 , before me personally came* G. H., the subscribing witness to the above [or, within,
Comrs., 75 App. Div. 106, 77 N. Y. Supp. 380. That he cannot be a subscribing witness unless authorized by statute was held in Coleman v. State, 79 Ala. 49, and Townsend v. Downer, 27 Vt. 119.
16 A general authority given to an attorney in fact to execute an instrument implies authority to acknowl. edge it. Lowenstein v. Flaurand, 11 Hun (N. Y.), 399.
17 Where the instrument is executed by the attorney in fact of the party, lawfully authorized, the attorney is the party executing the game, who may make the acknowledgment. Lovett r. Steam Saw Mill Ass'n., 6 Paige (N. Y.), 54.
18 A party to the instrument can not, without also signing at the time as a subscribing witness, make proof as such to the execution of the instrument by other parties. People eco rel. L. I. R. R. Co. v. Board of R. R.
The subscribing witness must state and the certificate must show his residence, and that he knew the person described in and who executed the instrument. Real Property Law (L. 1896, c. 547), 88 253, 255; Irving 0. Campbell, 121 N. Y. 353.
A form of certificate of proof by subscribing witness under laws existing in 1828 is examined in Trustees, etc. v. McKechnie, 90 N. Y. 618, and considered sufficient.
or, annexed] instrument, with whom I am personally acquaint who, being by me duly sworn (or, affirmed],"o did depose and sa that he resides in the city of
in the State of that he knew A. B., the person [or, one of the persons—or, B. and C. D., the persons] described in and who executed t above [or, within—or, annexed] instrument, and that he sa said A. B. [or, A. B. and C. D.) execute the same,20 and that sa A. B.—or, A. B. and C. D., respectively, each for himselfacknowledged to said deponent, that he executed the same, ar that said deponent at the same time subscribed his name as witness thereto. 21
[Signature of officer and title.]
FORM No. 7. Certificate of acknowledgment or proof in another State before a Commissione
of deeds for New York.22
[Continue as in previous Forms.]
[Signature, title, and official seal.]
FORM No. 8. Certificate of acknowledgment before United States consular agent. (Under
N. Y. Statutes.)23 [Venue, including country, and city of consul's official residence.?
On this day of 19 , before me, A. B., Consular Agent of the United States of America, in and for said
19 The certificate must show that the subscribing witness was sworn, or affirmed. McIntyre 0. Kamm, 12 Oreg. 253.
20 The witness must swear that he saw the signing. Schaffer v. Em mons, 103 App. Div. 399, 92 N. Y. Supp. 993.
21 Mere identity of name between the signature of the subscribing wit ness and the person making the proof will not obviate a failure to certify that the person appearing before the officer was, or stated he was, the subscribing witness. Gillett v. Stanley, 1 Hill (N. Y.), 121.
22 This certificate must state the town and county, or the city, in which the acknowledgment or proof was taken, and must have his seal of office affixed. Real Property Law (L. 1896, c. 547), 88 256, 257.
A certificate from the N. Y. Secretary of State must be obtained, showing authority of commissioner, etc. Id., § 260.
23 Real Property Law (L. 1896, c. 547), $ 250. The form as given above is sustained in Jordan v. Underhill, 91 App. Div. 124, 86 N. Y. Supp. 620.