Lahens v. Fielden

1 Barb. 22

• Court: New York Supreme Court
• Decided: September 9, 1847
• Status: Published

Opinion

Edmonds, J.

The 32d rule of this court in equity allows the answer of a person residing out of this state, to be sworn to in the manner prescribed by law for taking affidavits out of the state, which is, before a judge of a court having a seal. (2 R. S. 396, § 33.) Is a master extraordinary of the English court of chancery such an officer 1 He is appointed to act in the country, in the several counties more than twenty miles distant from London, by taking affidavits, recognizances, acknowledgments of deeds, &c. (2 Toml. Law Dict. 537.) The officer required by our statute must be something more than a commissioner of deeds, or clerk authorized to administer oaths; something more even, perhaps, than a master in ordinary or referee, who is sometimes authorized to adjudge matters in court. He must be a “member of the court;” for that must be certified by the clerk of the court, under its seal. That is not certified in this case. The clerk merely certifies that Mr. Miller is an officer of the court, not that he is a member of the court; which is necessary, under our statute.

Motion granted.