Summary
In Robinson v. Cooper, 62 Misc. 517, it was held that where the venue having indicated that the affidavit was taken in the county of New York, whereas the officer was appointed for the county of Kings, the affidavit was taken in a county where the notary was not authorized to act.
Summary of this case from Matter of McCarthyOpinion
March, 1909.
David W. Rockmore, for plaintiff.
Eugene N.L. Young, for defendant.
The defendant appears specially for the motion and moves to vacate the order of arrest upon several grounds, but, upon the argument and submission, urges only that the order should be vacated because founded upon affidavits apparently unverified.
The affidavits bear the venue "city and county of New York;" and the jurat to each is subscribed "W.F. Duckworth, Notary Public, Kings Co., N.Y."
The Executive Law (Laws of 1892, chap. 683, as amd. by Laws of 1894, chap. 88, § 85) provides that a notary may administer oaths and affirmations and take affidavits in the county in and for which he shall have been appointed.
The venue indicates that the affidavit was taken in the county of New York and the jurat that the officer was appointed for Kings county. Hence, upon its face, each affidavit was taken in a county where the notary was not authorized to act.
This constitutes a jurisdictional defect, and the affidavits must be regarded as a nullity. Every affidavit should show upon its face that it was taken within the jurisdiction of the officer who certifies it. Thompson v. Burhans, 61 N.Y. 63; Saril v. Payne, 24 N.Y. St. Repr. 486; Lane v. Morse, 6 How. Pr. 394; Davis v. Rich, 2 id. 86; Sandland v. Adams, Id. 127; Snyder v. Olmsted, Id. 181; Shaw v. New York Central H.R.R.R. Co., 101 A.D. 246.
In several of the cases cited, the venue was wanting. Hence, the court was unable to say that the officer acted within his jurisdiction. In the case at bar it affirmatively appears that the officer acted without his jurisdiction.
Supporting affidavits and other evidence may not be submitted to show the authority of the notary and sustain the order. Code Civ. Pro., § 568; Maniscalco v. Slamowitz, 123 A.D. 690.
For the foregoing reasons I am of the opinion that the defendant's motion should be granted.
If the fact be that the notary was empowered to act in New York county under section 82 of the Executive Law (Laws of 1892, chap. 683, as amd. by Laws of 1901, chap. 657), it would seem that, in order to show jurisdiction on the face of the affidavit, the fact should be briefly stated in the jurat or appended to his signature, and the county of his appointment.
It cannot be presumed on this motion that the notary complied with the section last referred to.
Motion granted, with ten dollars costs.