Turtle v. Turtle

31 A.D. 49, 52 N.Y.S. 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Rumsey, J.:

This motion might well have been denied upon the insufficiency of the moving papers. There is no evidence of the amount of property, or the income of the defendant, except the statements contained in the affidavit of the plaintiff. Those statements are contradicted and explained by the affidavit of the defendant, so that, even if the affidavit of the plaintiff were to be considered, there was not enough evidence to enable the court in deciding the motion to fix the amount of alimony. But the affidavit of the plaintiff was not properly certified to permit it to be read. Section 844 of the Code prescribes that an affidavit which may be received in an action in this State may be taken without the State before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State. The words “ the State,” as used in that section, refer, in each instance, to the State of New York. (Ross v. Wigg, 34 Hun, 192.) The persons who may take acknowledgments of deeds outside of the State, to be recorded in the State, are prescribed by section 249 of chapter 547 of the Laws of 1896, and a notary public is not one of those persons; therefore, an affidavit taken outside of the State before a notary public cannot, in the present state of the law, be read in one of our courts. But if the construction given to section 844 of the Code, in the case of Ross v. Wigg, be not adopted, and it should be held that the words “ an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State,” meant an officer authorized to take such acknowledgment by the laws of the State in which the affidavit was made, this affidavit is still not sufficient. A notary public has no power to take an acknowledgment of any paper unless that power is given to him by statute, and there is nothing to show in these papers that any such power is given to him by the statutes of the State of Michigan where this affidavit was sworn to. The certificate of a clerk states that he is authorized to administer an oath, but that is not sufficient. In' any aspect of the case, therefore, the affidavit could not be considered. For these reasons the motion was properly decided, and it is not necessary to consider the case upon the merits. It is, however, proper in such a case as this, where the papers are defective, that the moving party should have an opportunity to renew her motion on new papers, and the order denying the motion is, therefore, modified so far as that the denial of the motion shall be without prejudice to its renewal upon new papers, and as so modified should be affirmed, without costs.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred.

Order modified so as to direct that the denial of the motion shall be without prejudice to its renewal upon new papers, and as so modified affirmed, without costs.