
    John A. Johnston et al., Respondents, v. Walter L. Granger, Substituted Defendant, Appellant.
    (City Court of New York, General Term,
    May, 1896.)
    1. Evidence — Deeds, executed in another state — Acknowledgment.
    A deed of assignment executed in another state is inadmissible in evidence' where the certificate of acknowledgment-fails to state that the officer taking it was authorized- by law to do so, or that he knew . or had satisfactory evidence that the person making the acknowledgment was the individual described in and who executed the instrument.
    2. Same — Records.
    Such an instrument is not a court record and is not governed by the federal statute.
    Appeal from judgment in favor of the plaintiffs.
    Johnston & Johnston, for respondents.
    . Thomas C. Campbell, for appellants.
   Conlan, J.

■ This is an appeal from the judgment of the Trial Term in favor of the plaintiffs.

' The cause was tried without a jury. The action was brought by the plaintiffs’ firm .together with the sheriff in aid of an attachment, and the present defendant was substituted in place of the original defendant, on the alleged ground that he had become the owner by purchase, subsequent to the levy by the sheriff, and paid the amount into court.

The appellant in his statement of facts concedes that the one important question in this appeal is, whether the learned judge was right in striking from the record the deed of assignment made by John'Route’s Sons Company, a corporation, because of an acknowledgment not made pursuant to the requirements of the New York law, though made in pursuance to the Ohio law; and we think the determination of this single question is sufficient to dispose of the entire appeal. The facts sufficiently appear in the opinion.

The defendant offered in evidence, upon the trial, the record of an assignment from the Hamilton Probate Court of Ohio, to which was annexed the following notarial certificate of acknowledgment and proof:

“ STATE OF OHIO, 1 . County of Hamilton, f
Be it remembered, that on the 15th day of August in the year of our Lord, eighteen hundred and ninety-one, before me, the subscriber^ a notary public in and for the said county, personally came the John Boute’s Sons Company, by Charles E. Boute, its president, thereunder duly authorized, the grantor in the foregoing deed, and acknowledged the signing and sealing thereof to be its voluntary act and deed for the uses and purposes therein stated.
In testimony whereof, I have hereunto subscribed my [seal.] name, and affixed my notarial seal the day and year aforesaid.
“ C. B. Warrington,
Notary Public, Hamilton Go., Ohio.”

To this objection was made, in its entirety, as not being certified as required by the statutes of this state; and the assignment itself was further objected to as not being proved as required by the New York laws so as to entitle it to be read in evidence here. The paper was first received conditionally by the trial judge, in the following language: “ I will admit it in evidence for the present,

and without passing upon the effects of it; subject, however, to the plaintiff’s objections and to my striking it out after further examination.” And the court subsequently struck it from the record on the ground that the acknowledgment was defective, and, therefore, inadmissible, and to this decision of the court we find no distinct exception upon the record, nor did the defendant request any finding upon the question of the assignment or transfer of the subject-matter thereof.

• The only exceptions are to the decision of the court, and are to be found at folios 90 and 91 of the case; so, that if it were error to have rejected the instrument offered, the defendant may be said to have fully acquiesced in that decision in the absence qf any valid exception to the ruling of the court. Whatever authority there is for presuming that this paper may be read in evidence in this state- is found in chapter 195 of the Laws of 1848, and as since amended.

The language of the act, so far as it relates to the subject under consideration, is as follows, namely:

The proof or acknowledgment of any deed or other written instrument required to be proved or acknowledged, in order to entitle the same to be recorded or read in evidence, when made by any person out of this state, and within any other state or territory of the United State's, may be made before any officer of such state or territory authorized by the laws thereof to take, the proof and acknowledgment of deeds, .and, when so taken and certified, as herein provided, shall be entitled to be recorded in any county of this state, and may be read in evidence in any court in this State; * * ; * • provided that no such acknowledgment shall be valid unless the officer taking the saíne shall know or have satisfactory evidence that the person making such acknowledgment is the individuál described in, and who executed the said deed or instrument.”

By a comparison of the form of the acknowledgment of the instrument offered with that required by statute just quoted, it will be seen at a glance that the former is clearly deficient in more than one respect, and the defects are such as, in our opinion, to render the acknowledgment or proof thereof fatally defective.

It does not appear that the notary was authorized to take the proof or acknowledgment of this, nor that he knew or had satisfactory evidence, or any evidence whatever, that the person making the acknowledgment was the individual described in and who executed the said deed or instrument, and for aught that appears, the person acknowledging may have been an entire stranger, wholly Unknown to the notáry, and unless he were so known, or in some way known to the notary’s satisfaction to be the person he claimed to be, and this must, of necessity, appear by the certificate of acknowledgment itself, then it may, with truth and reason,. be said that the notice or certificate was not only not in conformity with the statute, -but it is the statement of facts at variance with the truth .pretended to be vouchsafed by the form and ceremony of acknowledgment or certificate of proof. Such a certificate violates both the letter and spirit of the law.

The defendant endeavored to cure this apparent fatal, defect by invoking the aid of the Second United States Revised Staututes, section 905, at page 171, volume 1, but we fail to see the force of the application.

That statute has expressly to do with the records and judicial proceedings of the courts of other states and territories when offered for evidence in the courts of this state;, and not with the records of a document or paper like an assignment, deed or transfer, or other instrument of that nature of record in a public office in the state or territory.

We think that this assignment was not a court record within the meaning of the United States Revised Statutes, but was of record in a public office; and being a record in a public office of another state, was required to be acknowledged as required by the act of 1848, and properly certified as required by section 2 of that act, before it could be received in evidence in the courts of this state.

We are, therefore, of the opinion, for the reasons stated, that the instrument was properly rejected by the trial judge, and having reached that conclusion, do not find it necessary to consider any other question upon this appeal. As without the assignment in evidence the plaintiffs were clearly entitled to recover, it necessarily follows that the judgment should be affirmed, with costs. -

Schuchman, J., concurs.

Judgment affirmed, with, costs.  