Isman v. Wayburn

Motion is made for an order advancing this cause to the special calendar for trial. The only objection is that the affidavit upon which the motion is based purports to be sworn to before a notary-public of the county of Philadelphia, in the state of Pennsylvania. Turtle v. Turtle, 31 App. Div. 49 , 52 N. Y. Supp. 857 , is cited. It was there held that the words “the state,” as used in section 844 of" the Code of Civil Procedure in relation to an affidavit taken without the state, refer in each instance to the state of New York. An affidavit, therefore, taken outside of the state of New York before a notary public, could riot, in the then state of the law (Laws 1896, p. 609, c. 547, § 249), be read in one of its courts. This section of the real property law, in relation to acknowledgments and proofs in other states, was amended by chapter 419, p. 978, of the Laws of 1903, to-read as follows:

“(5) Any officer of the state in which the acknowledgment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be-recorded therein, of which the certificate required by section two hundred and. sixty shall be evidence.”

An affidavit or acknowledgment may therefore now be sworn to before a notary of another state, and if properly authenticated will be received in this state, provided such notary was authorized by law in his own state to take the acknowledgment or proof of deeds to-be recorded therein. In this case the proper certificate is annexed, and it appears therein that the notary before whom the affidavit was made was duly commissioned and qualified “to take acknowledgments and, proofs of deeds or conveyances, for lands, tenements, and hereditaments to be recorded in said state of Pennsylvania.” By reason of the amendment of the real property law, as cited, the case of Turtle v. Turtle, 31 App. Div. 49 , 52 N. Y. Supp. 857 , is no longer controlling-