#### Morrill Goddard, Respondent, *v.*Armand Schmoll et al., Appellants.

(City Court of New York, General Term,

August, 1898.)

Proof of instrument executed in a foreign state — Certificates.

Certificates of acknowledgment, taken in a foreign state, in which that of the notary fails to state that the person executing the instrument was “ the individual described' in and who executed the foregoing instrument,” and that of the foreign secretary of state fails -to state that “ he is well acquainted with the handwriting of such ■ officer (the notary) and verily believes that the signature to said certificate' of proof or acknowledgment is genuine” or “that such *382officer was, at *the*time of taking suck proof or acknowledgment, duly authorized to take the same,” are insufficient to permit the instrument to which they are attached to bd read in evidence in the courts of the state of New York.

Appeal from a judgment in- favor of plaintiff and from an order denying a motion for a new trial.

Van Schaick & Norton, for appellants,

Philip Carpenter, for respondent.

Conlan, J.

This is an appeal from a judgment in favor of the plaintiff, and from an '.order denying a motion for a new-trial.

The plaintiff is the assignee of the .alleged cause of action, which arose out of the giving of an undertaking upon an attachment.

The alleged assignment was executed in ¡Massachusetts, and it is claimed by the defendants. that the same was not sufficiently authenticated to entitle it to be read in evidence upon a trial had in this jurisdiction.-

The ¡Revised Statutes of this state provide as follows: “The proof or acknowledgment of any deed or other written instrument required to be proved or acknowledged, in order to entitle the same to be recorded or- read in evidence, when made by any person without this state, and -within any other state or territory of the United States, or within the Dominion of Canada, may be made before any officer of such state, territory or dominion authorized by the laws thereof to take the proof and acknowledgment of deeds; and when so taken and certified as herein provided, may be read in evidence in any court in this state, in the manner and with, like effect as proofs and acknowledgments taken before any of the officers now authorized to take such proofs and acknowledgments; provided that no such proofs and acknowledgments Shall be valid unless the officer taking the same shaE know or have satisfactory evidence that the person making such acknowledgment is the individual described in and who executed said deed or instrument.” Laws 1848, chap. 195, § 1, as amended by Laws 1892, chap. 208, and by Laws 1893, chap. 123; Laws 1896, chap. 547, § 261.

And section 2 of said act, as amended by the Laws of 1867, *383chapter 567; Laws of 1891, chapter 100, and the Laws of 1894, chapter 729, provides as follows:

“ To entitle any conveyance or written instrument, acknowledged or proved under the foregoing section, to be read in evidence or recorded in this state, there shall be subjoined or attached to the certificate of proof or acknowledgment signed by such officer, a certificate under the name and official seal of the secretary of state, of the state in which such officer resides, or under the name and official seal of the clerk, register, recorder or a prothonotary of the county in which such officer resides, or in which such proof or acknowledgment was taken, or the clerk of any court in such county having a seal, specifying that such officer was at the time of talcing such proof or acknowledgment, duly authorized to take the same, and that such secretary of state, clerk, register, recorder or prothonotary, is well acquainted with the handwriting of such officer and verily believes that the signature to said certificate of proof or acknowledgment is genuine.”

It is sufficient to say that the certificates furnished by the plain- . tiff, put in evidence, Were not a compliance with the provisions of the statutes quoted above, and in the following particulars, namely: The certificate of the notary public does not contain any statement whatever that the person certified as the one executing the instrument of assignment was “ the individual described in and who executed the foregoing instrument,” as required by the statute; nor does the certificate of the secretary of state of Massachusetts, thereto attached in authentication, anywhere contain the statement, that “ he is well acquainted with the handwriting of such officer and that he verily believes that the signature to said certificate of proof or acknowledgment is genuine,” or “ that such officer was, at the time of taking such proof or acknowledgment, duly authorized to take the same.”

We may not infer from the language employed in the certificate that because “he was appointed and commissioned and on the 28th day of March, 1893, duly received the qualifying oath thereunder as a notary public for the said commonwealth, for the .term of seven years from the date of the said commission,” that, therefore, he was at the time of the taking of the acknowledgment, on the 29th day of December, 1894, still lawfully performing the functions of his- office, without the qualifying statement to that effect, and how easy and how simple a matter it would have been for the secretary’s certificate to say so.

*384But if it be insisted that the certificate is sufficient in this last respect, it certainly utterly fails to comply with the requirements of the statute in the other particulars pointed out, and *for.*these reasons could not be properly read in evidence upon the trial of the action here.

But it is further objected that the plaintiff’s exception is not broad enough to review that question here. Let us see!

The objection was to its immateriality, irrelevancy and incompetency, and the exception was to the ruling thereon.

We do not think that the scope of this objection or exception was limited by the following additional objection, namely, “I object to it further on the ground that,” etc,, as that was not a limiting but an additional application of the first objection, and the except tion to the ruling against him thereon in no way prejudiced the objection or exception taken by the plaintiff to the ruling on the broader ground, as- shown above.

.As the assignment of the cause of action to the plaintiff is the only authority for him to bring this action, and as the evidence of such assignment was insufficient, it follows that there could not be a recovery by the pjaintiff, and, for these reasons, we think the judgment should be-reversed.

Olcott, J., concurs.

Judgment reversed and new trial 'ordered, with costs to the appellants to abide the event.