Millar v. Doll — 54 A.D. 197

Majority

p. 197

Charles Millar, Respondent, v. William F. Doll, Appellant.

Headnote

Assignment of a judgment in favor of a firm, by one member thereof to himself— objection to its authentication, obviated where the member testifies to its execution — it must be taken at the trial.

In an action upon a judgment of a Canadian court of record, recovered by a firm. of which the plaintiff was a member and assigned by him to himself individually, an objection that the assignment was not admissible in evidence on the ground that it was not properly authenticated, is obviated where the plaintiff testifies on'the trial that he was a member of the firm in question and had personally executed the assignment.

The further objection, that the assignment was defective because it was not signed and executed by each copartner, need not be considered on an appeal, if it was not raised at the trial.

Appeal by the defendant, William F. Doll, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the. 9th day of April, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes. ,

p. 198

P. V. R. Van Wyck, for the appellant.

James H. Cooper, for the respondent.

The action is brought on a Canadian judgment recovered by C. Millar & Co. and Charles Millar at Toronto against the defendant. Upon the trial the plaintiff offered in evidence an assignment of the judgment, executed by himself and purporting to be acknowledged before a notary public for Ontario, to which was attached a certificate of the clerk of the county of York in the Province of Ontario that the person taking the acknowledgment was a notary public and “ authorized by the laws of said Province to take the acknowledgments and proofs of deeds or conveyances for land * * * in said Province of Ontario.”

Objection was made to admitting this assignment in evidence on the ground that it was not properly authenticated, and the exception to the ruling admitting it in evidence presents the principal question urged upon this appeal.

We do not think it is necessary to determine whether the assignment was or was not properly authenticated, for the reason that the plaintiff was present at the trial, was examined as a witness and testified in his own behalf that he was a member of O. Millar & Co. and had personally executed the instrument. There was, therefore, before the court sufficient evidence taken before the notary, and the court properly admitted the paper in evidence.

The further objection made that the assignment, being of a judgment in a court of record, is defective in not being signed and executed by each copartner, was not raised at the trial and need not, therefore, be considered on this appeal.

As no question is presented other than one as to the sufficiency and validity of the assignment, we think that the disposition made by the court at the close of the case in directing a verdict for the plaintiff was right, and that the judgment should be affirmed, with costs.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and Hatch, JJ.

Judgment affirmed, with costs.