Manheimer v. Dosh

Hascall, J.

The appellant urges, aside from the merits, that, the order was absolutely void because based upon an affidavit, which could not be used in this State. It appears that the affidavit was made in the State of Iowa, where was attached a certificate which the appellant claims is insufficient to enable the party, desiring its-use, to read the same in evidence, or make any use whatever of it in this State in the action. He cites the case of Stanton v. United States Pipe Line Co., 90 Hun, 35, in support of his contention. Section 844 of the Code states in detail the requirements of the-certificate which must accompany a foreign affidavit “ as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within the State, etc.,” and the Laws of 1896 (chap. 547, § 249, subd. 5) state that the affidavit may be made before “ any officer of the State authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein.” Under these imperative requirements it would' seem that the foreign certificate-which merely states “ that M. J. Tobin is a duly elected and qualified notary public in and for the said county and State aforesaid ” is sufficient to uphold the contention of the respondent that the-papers are without legal infirmity.

If this view be correct, it is needless for us to discuss the merits-of the affidavit upon which the order for examination was granted. We thing that the order appealed from should be reversed, with costs and disbursements of the appeal, but with leave to the respondent to renew her application upon proper papers thereof.

Delehanty and McCarthy, JJ., concur.

Order reversed, with costs and disbursements, with leave to respondent to renew application upon proper papers.