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[city or locality of appointment), residing within said [country), personally appeared [continue as in ordinary acknowledg. ment.]
[Signature and official title.]
FORM No. 9. Certificate of authority of officer of another State taking acknowledgment or
proof by virtue of the laws of his residence. (Under N. Y. Statutes.) 24
t, substitute, cle; in the State Cerk, or, Prothon
l], do herebyrt, a court of recor; if clerk of the
I [name], the [official title, as Clerk, or, Prothonotary] of the county of , in the State of [or, if clerk of a court, substitute, clerk of the court, a court of record of said county having by law a seal], do hereby certify that M. N., the officer certifying the foregoing certificate of acknowledgment [or, proof], was at the time of taking such acknowledgment [or, proof] a [official position] in and for the said county, and a resident thereof and duly authorized by the laws of this State to take the acknowledgment or proof of deeds to be recorded in this State ;25 that I am well acquainted with the handwriting of said M. N.,26 and verily believe that the signature to said certificate of acknowledgment [or, proof] is genuine.
In testimony whereof, I have hereunto set my [Official Seal.] hand and affixed my official seal [or, the seal
of said court (or, county)], this day of
, 19 .
[Signature and official title.]
24 Real Property Law (L. 1896, c. 547), 88 260, 261. A certificate of acknowledgment will be received as proving itself, unless a statute requires authentication. St. John v. Croel, 5 Hill (N. Y.), 573.
25 This clause regarding the officer's authority will be necessary whenever the foreign officer taking the acknowl. edgment is not one of those specifically mentioned in section 249 of the Real Property Law. A notary public is not so mentioned, and his authority will not be presumed. Turtle v.
Turtle, 31 App. Div. 49, 52 N. Y.
26 Or, “ that I have compared the signature to the foregoing original certificate with the signature of said M. N. deposited in my office by him and verily believe," etc. A statement that it “purports” to be the signature of the notary is insufficient. Brown v. Stilwell, 1 N. Y. St. Rep. 132.
FORM No. 10. Certificate to acknowledgment before judge of court of record in Canad
(Under N. Y. Statutes.) 27 [Venue.] I, R. S., the clerk of the Court of
, a cour of record in said
, in the Dominion of Canada, do hereb. certify that said court is an existing court of record in and fo said
, and has a seal, that M. N., before whom the an nexed [or, foregoing] acknowledgment [or, proof] was taken was at the time of the taking thereof a judge of said court; tha I am the clerk of said court, and am well acquainted with the handwriting of said M. N., and verily believe his signature to the said certificate of acknowledgment to be genuine.
In testimony whereof, I have hereunto set my [Seal of Court.] hand and affixed the seal of said court,
this day of , 19 .
[Signature and official tille.)
27 Real Property Law (L. 1896, c. 547), § 261. Sustained under prior
statutes in Ross v. Wigg, 34 Hun (N. Y.), 192.
ADMISSIONS OF SERVICE. [Admission of the service of a summons is subject to some special regulations which are stated in connection with that subject.]
FORMS. 11. Full admission.
13. Admission of receipt of copy. 12. Admission not conceding timeliness.
FORM No. 11.
for, of a of which the within is a copy], is hereby admitted day of , 19 .
Attorney for [If by a person who is not an attorney, add acknowledgment or proof of genuineness.] 29
FORM No. 12.
Admission not conceding timeliness.30 Service this day of , 19 , of the within [or of a
of which the within is a copy], is hereby admitted.
Attorney for [Acknowledge, if need be, as in preceding form.]
28 A mere admission of service, while conceding the regularity of the mode of service, does not concede its timeliness. An admission of " due service " implies that it was properly made, and in time to save the party's legal right. Harmon v. Van Ness, 56 App. Div. 160, 67 N. Y. Supp. 561; Talman v. Barnes, 12 Wend. (N. Y.) 227; Tudor v. Ebner, 109 App. Div. 521, 96 N. Y. Supp. 392.
20 Matter of Stephani, 75 Hun, 188,
26 N. Y. Supp. 1039. A third person's affidavit to prove genuineness of signature of a party is without effect, as such a method of proof is not recognized by statute. Duclos v. Benner, 6 N. Y. Supp. 293.
The court assumes to take judicial notice of the signatures of attorneys in the cause. Ripley v. Burgess, 2 Hill (N. Y.), 360.
30 Francis v. Sitts, 2 Hill (N. Y.), 362.
FORM No. 13.
Admission of receipt of copy.31 Copy of within paper received 32 this , 19 .
31 The practice has become a very common one among attorneys to affix an impression from a rubber stamp in lieu of a pen-written admission of service. When the attorney's name is stamped upon the paper as well, it is valueless as an admission of service, no presumption of genuineness attaching to it. The practice is not to be commended.
32 This form leaves the attor free to contest the regularity of m of service. Tudor v. Ebner, 109 A Div. 521, 96 N. Y. Supp. 392. ] retaining it may be a waiver of irregularity in both mode and t of the service. Rogers v. Rockwe 36 N. Y. St. Rep. 919, 13 N. Supp. 939.
AFFIDAVITS. Facts only should be stated. Conclusions, or inferences, whether of fact or of law, drawn by the affiant from undisclosed facts, are without effect; so, when the facts disclosed will not support the inferences drawn by the affiant, the inferences will be rejected by the court. 33
The affiant should be the person who has personal knowledge of the fact desired to be established by the affidavit, and failure to present his affidavit must be excused by showing his absence, or other adequate reason. 34
A statement of fact made without qualification is presumed to be made on knowledge. 35
A statement made as upon affiant's personal knowledge, where it appears from the character of the fact that he cannot possess that knowledge, will not be accepted by the court as establishing that fact.36
The decisions are not uniform on the question whether a positive statement of an existing fact, on personal knowledge, will be received as establishing that fact, from an affiant who does not disclose other facts from which an inference may be drawn that he possesses personal knowledge. 37
A general assertion of a fact in an affidavit upon information
33 Powell v. Kane, 5 Paige (N. Y.), 265; McCullough v. Aeby, 9 N. Y. Supp. 361, 31 N. Y. St. Rep. 125; Mechanics, etc., Bank v. Loucheim, 55 Hun, 396, 8 N. Y. Supp. 520; Hodgman v. Barker, 60 Hun, 156, 14 N. Y. Supp. 574; aff'd, 128 N. Y. 601.
34 Pach v. Geoffroy, 65 Hun, 619, 19 N. Y. Supp. 583, aff'd 143 N. Y. 661; Steuben Co. Bank v. Alberger, 78 N. Y. 252.
35 Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 324.
36 Thomas v. Dickinson, 11 N. Y. Supp. 436, 33 St. Rep. 786; Crowns v. Vail, supra.
37 That it will, see Pierson v. Freeman, 77 N. Y. 589; Ladenburg v. Com. Bank, 5 App. Div, 219, 39 N. Y. Supp. 119; Lacker v. Dreher, 38 App. Div. 75, 55 N. Y. Supp. 979; Wicker v. Elmira Heights, 42 App. Div. 426, 59 N. Y. Supp. 130. Contra, Hoorman v. Climax Cycle Co., 9 App. Div. 579, 41 N. Y. Supp. 710; Tucker v. Goodsell Co., 14 App. Div. 89, 43 N. Y. Supp. 460; Martin v. Aluminum Plate Co., 44 App. Div. 412, 60 N. Y. Supp. 1010; compare Anthony & Co. v. Fox, 53 App. Div. 200.