#### Jacob Greenberg, Respondent, *v.*Mary Britt, Appellant.

Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the City of New York, borough of Manhattan, fifth district.

Henry L. Franklin, for appellant.

Louis S. Finn, for respondent.

Leventritt, J.

The defendant sought to offset an assigned claim to the plaintiff’s admitted cause of action. The single question litigated was the daté of the execution and' delivery of the alleged written assignment to the defendant, and the justice on sufficient evidence found that it was antedated in order to render the counterclaim available. To appeal from such a determination is futile, as it involves merely a question of fact, which, under the settled practice of this court, uniformly leads to affirmance.

The judgment must he affirmed.

Freedman, P. J., concurs.

MacLean, J. (Dissenting.)

Both plaintiff and defendant claimed to he assignors, the former of a claim by one Horovitz, the latter of. a claim against the same Horovitz, Both assignments were formally correct and receivable in evidence under section 937, Code of Civil Procedure. That to the defendant was dated and apparently acknowledged May 2, 1898. That to the plaintiff was *800'dated and apparently acknowledged May 3, 1898. Horovitz stopped" business May 5, 1898. The defendant and her assignor testified that the assignment to her was delivered in the forenoon of May 2d. The'assignor and her husband testified that it was drawn and executed in the office of, and before the notary on May 2d; all three, that it was agreed upon April 30th. That' is, the execution and delivery of the paper on May 2d were testified to by every one known to have had .personal knowledge of the facts, excepting the notary who was not called, and to call whom would not be usual in practice. The learned justice determined that the assignment 'to the 'defendant was antedated; basing his determination upon, the facts that the attorney of the defendant had told the attorney of the plaintiff after the commencement of the action that there was no assignment, and that there was an *“*interlineation ” in the paper. The interlineation, as appears from the original paper included in the return, consists of the addition of the Tetters “ ar-ah ” to the initial *“*S ” of. the assignor, to maleé ■- it *“*Sarah.” The letters seem- to have been added by the assignor herself, for they resemble the same letters in her acknowledged signature, and the ink, for both seems from the appearance to have been taken from thé same ink-horn, and not from the onffiused by the notary, who was apparently, the draughtsman. • The letters so added made the identification of the person named in the body of the paper, with the signer of the same, inore complete, butr did not affect its validity (Davis *&*Rankin Bldg. *&*Mfg. Co. v. Dix, 64 Fed. Repr. 406), and had no reference to the date of execution or delivery.. With some quibbling as to the words used, defendant’s counsel admitted in.court and under oath that he had said soon after the action was commenced that there was no assignment; he also testified, that such statement was not true. That is, his'statement out of court was contradicted by his statement in court and under Oath. Neither were of much moment as to the matter at issue, however reprehensible the former statement, and however amenable it might make him in a forum of morals or of discipline. It was, not based upon knowledge. No one claimed that he was present at the execution or delivery of the instrument. It was not competent to rebut or impeach the ■ certificate of a public official, whose false statement would make him responsible civilly to any party aggrieved, subject him to removal for misconduct, and render him liable to punishment, as for forgery in the first degree, by imprisonment for" a term not exceeding twenty years.. From these austere sanctions arises a strong presumption of the verity of a notarial certificate, which, by law, is made presumptive *801evidence of high character, and not lightly to he overcome. ' If any circumstances not' appearing in the record here aroused the suspicion of the learned justice, he might have interrupted the trial to allow counsel for the plaintiff to produce other evidence, or even to cite before him as witness the person who, as he suggested, might have given disinterested testimony. Upon the record' as it stands, in my opinion, the judgment should be reversed, with costs.

Judgment affirmed, with costs to the respondent.