Treadwell v. Sackett , 1867 N.Y. App. Div. LEXIS 199 ( 1867 )

Clerke, J.

As it is necessary that every partner should unite in the execution of an assignment in trust, except when some of the partners abscond and give authority, express or implied, to those remaining to execute such an instrument, (Welles et al. v. March et al. 30 N. Y. Rep. 344,) it is equally necessary that when all execute it, the acknowledgement which the statute requires, should also be made by all. I have already decided in Jones et al. v. Bach et al. (48 Barb. 568,) that' an acknowledgement made before an officer who "had no previous knowledge of the parties and who received no more evidence of their identity, at the time of execution, was fatally incomplete, and the defect rendered the instrument null and void.

, The only question which I have to consider on this point, in the present case, is, whether all the parties to the instrument in the case before me were previously known to the officer who took, their acknowledgment P It is not pretended that hé took sworn "evidence of their identity.

The officer, Mr. Cadwallader, testifies that all the five parties were present ait the time of execution, and that all executed and acknowledged it at the same time. In answer to the question, how many and which of them he had previously known, he said that certain of these people, but as to which he could not say, were known to him ; that is they had been in his office in the same way ; they had come there and signed papers ; but which of. them, he could not specify. He was asked if he had any recollection of having ever met any one of them at any social or business place before that time. He answered : “ Certain of these people, I think two or three of them, have been in my office, but which ones I cannot state.” So that it is evident that he had personal knowledge of the identity, at most, of only two of the parties, previous to the acknowledgement, and of the other three a very vague and indistinct knowledge. If then it is necessary that all the parties to an instrument of this kind should have been previously known to the officer before whom the acknowledgment has heen made, it is clear that in this case the acknowledgment is fatally defective. Even if he intimately knew some of the parties, and knew nothing previously of the others, the same result would follow. .

[New York Special Term, October 7, 1867.

There must be judgment for the plaintiff, in conformity with the prayer of the complaint.

Clerke, Justice.]