New York (State).

Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index online

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Online LibraryNew York (State)Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index → online text (page 37 of 137)
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Source. — ^Former Real Prop. L. (Ln 1896, ch. 547) | 243; originally revised from
R. S.. pt. 2, ch. 8, §i 22, 23.

Keferenoes. — ^Evidence of conyeyances, see CJode of Civil Procedure, §| 935, 936.

See Dempsey v. Tylee (1854), 10 N. Y. Super. (3 Duer), 73, 95.

§ 294. Becording exeontory contracts and powers of attorney.— An ex-
ecutory contract for the sale or purchase of real property, or an instrument
containing a power to convey real property, as the agent or attorney for
the owner of the property, acknowledged or proved, and certified, in the
manner to entitle a conveyance to be recorded, may be recorded by the
recording oflScer of any county in which any of the real property to which
it relates is situated.

Source. — ^Former Real Prop. L. (L. 1896, ch. 547) | 244; originally revised from
R. S., pt 2, ch. 3, f 39, in part.

Effect of recording contracts for sale of landi. — It seems that the only effect of
the provision for the recording of contracts for the sale of lands is to preserve
the evidence and facilitate proof thereof. The record is not constructive notice
to subsequent purchasers or incumbrancers, and an action cannot be maintained
to cancel it as a cloud upon the title. Boyd v. Schlesinger (1874), 59 N. Y. 301;
V^ashbum v. Burham (1875), 63 N. T. 132.

A power of attorney in order to be recorded must be acknowledged as required
by law. Paolillo v. Faber (1900), 56 App. Div. 241, 67 N. Y. Supp. 638.

Transcript of power of attorney as evidence. — ^A transcript, certified by the proper
officer, of a power of attorney authorizing the conveyance of land, recorded in the
clerk's office of the county in which the land is situated, is competent as evidence.
Lerche v. Brasher (1887), 104 N. Y. 157, 10 N. B. 58.

§ 295. Becording of letters patent. — ^Letters patent, issued under the
great seal of the state, granting real property, may be recorded in the
county where such property is situated, in the same manner and with like
efifect, as a conveyance duly acknowledged or proved and certified so as to
entitle it to be recorded.

Source. — ^Former Real Prop. L. (L. 1896, ch. 547) | 245; originally revised from
Lu 1845, ch. 110.

Application.— Grants from the sovereign to be valid must be recorded. Hooper
V. City of New York (1916), 96 Misc. 47, 160 N. Y. Supp. 14.

Evidence; oertifled copy of record of letters patent. — ^A grant from the People of
the State of New York by letters patent may be proved, where the original letters
patent are lost, by a certified copy of the record of such letters in the office of
Vol. VII— 16



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7508 REAL PROPERTY LAW.

{§ 296-298. Recording instruments affecting real property. L. 1909, ch. 52.

the Secretary of State. Such a copy Is a transcript from a record kept "pursuant
to law," within the meaning of section 933 of the Code of Civil Procedure. New
York Central & H. R. R. R. Co. v. Brockway Brick Co. (1896), 10 App. Div. 387,
41 N. Y. Supp. 762, affd. (1899), 158 N. Y. 470, 53 N. E. 209.

§ 296. Becording copies of instruments wMcli are in secretary of state's
office. — A copy of an instrument affecting real property, within the state,
recorded or filed in the oflSce of the secretary of state, certified in the man-
ner required to entitle the same to be read in evidence, may be recorded
with such certificate in the oflSce of any recording oflScer of the state.

Source. — ^Former Real Prop. L. (L. 1896, ch. 547) S 246; originally reyised from
L. 1839, ch. 295, 8 5.

§ 297. Certified copies may be recorded. — A copy of a record, or of any
recorded instrument, certified or authenticated so as to be entitled to be
read in evidence, may be again recorded in any oflSce where the original
would be entitled to be recorded. Such record has the same effect as if the
original were so recorded. A copy of a conveyance or mortgage affecting
separate parcels of real property situated in different counties, or of the
record of such conveyance or mortgage in one of such counties, certified or
authenticated so as to be entitled to be read in evidence, may be recorded in
any county in which any such parcel is situated, with the same effect as if
the original instrument authenticated as required by section three hundred
and ten of this chapter were so recorded.

Source. — Former Real Prop. L. (L. 1896, ch. 547) f 247; originally revised from
L. 1843, ch. 210, § 5, as amended by L. 1893, ch. 182; L. 1887, ch. 539.

§ 298. Acknowledgments and proofs within the state. — The acknowledg-
ment or proof of a conveyance of real property within the state may
be made at any place within the state, before a justice of the supreme
court; or within the district wherein such oflScer is authorized to perform
oflicial duties, before a judge, clerk, deputy clerk, or special deputy clerk
of a court, a notary public, or the mayor or recorder of a city, a justice
of the peace, surrogate, special surrogate, special county judge, or com-
missioner of deeds, except that such an acknowledgment or proof of con-
veyance may be taken by a justice of the peace anywhere within the
county containing the town or city in which he is authorized to perform
oflScial duties. (Amended by L, 1915, ch, 190.)

Source. — Former Real Prop. L. (L. 1896, ch. 547) § 248; originally revised from
R. S., pt. 2. ch. 3, § 4, subd. 1.

Consolidators' note. — It is highly desirable that a statutory form for a certificate
of acknowledgment, by attorneys In fact, should be prescribed. Inasmuch as there
is considerable difference of opinion in the profession as to the requisites of
such certificate. The officer taking such acknowledgment cannot be expected to
have any knowledge of the principal In the transaction. He commonly knows
only the attorney in fact and need not know the principal. Hence it should be
sufficient that he certify the identity of the person making the acknowledgment
as attorney in fact. As the attorney is not necessarily described in the instru-
ment of conveyance acknowledged, both the power of attorney and the certificate



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REAL PROPERTY LAW. 7509

L. 1909, ch. 52. Recording instruments affecting real property. S 299.

of acknowledgment should be required to be precise in their descriptions of the

attorney so as to distinguish him from persons bearing similar names.

The following form is suggested to go as a new section at the end of this article:

"§ 332. Attobneys in Fact and Form of Acknowledgment. Every instrument

hereafter executed conferring a power upon any person, as agent or attorney in

fact for another, to convey or mortgage real property in this state, or to a4e»ign,

release or satisfy any lien thereon, shall describe such agent or attorney in fact,

stating his occupation, if any, and also his residence or place of business.

The certificate of acknowledgment of an instrument executed by such agent

or attorney in fact shall be substantially in the following form, the blanks being

properly filled:

State of

yaa:
County of

On this day .' in the year before me personally

came to me personally known to be the person described and

appointed attorney in fact and in by a certain power of attorney executed by

bearing date the day of and recorded in the office

of the register (or clerk) of the County of on the day of

(or to be recorded in the office of the of the County of

simultaneously with the within instrument) and acknowledged to

me that he had executed the within (or foregoing) instrument as the act of the

said



}



Signature and office of officer
taking the acknowledgment."
A police magistrate of the city of New York is not a judge authorized to take
acknowledgment Tully v. Lewitz (1906), 50 Misc. 350, 98 N. Y. Supp. 829.

§ 299. Acknowledgments and proofs in other states. — ^The acknowledg-
ment or proof of a conveyance of real property, within the state, may be
made without the state, but within the United States, before any of the
following oflScers acting within his jurisdiction, or of the court to which he
belongs :

1. A judge of the supreme court, of the circuit court of appeals, of the
circuit court, or of the district court of the United States.

2. A judge of the supreme, superior, or circuit court of a state.

3. A mayor of a city.

4. A commissioner appointed for the purpose by the governor of the
state.

5. Any oflScer of the state or territory in which the acknowledgment is
taken authorized by the laws thereof to take the acknowledgment or proof
of deeds to be recorded therein.

6. Any oflScer of the District of Columbia authorized by the laws of the
United States to take the acknowledgment or proof of deeds to be recorded
in said district.

Source.— Former Real Prop. L. (L. 1896, ch. 547) § 249, as amended by L.
1903, ch. 419; L. 1908, ch. 61; originaUy reyised from R. S., pt. 2, ch. 3, S 4, subd.
2; L. 1829, ch. 222, i 1, in part; L. 1845, ch. 109; L. 1848, ch. 195, S 1, as amended
by L. 1892, ch. 208, and L. 1893, ch. 123.

Proof of instrument executed in a foreign state. — See Goddard y. Schmoll (1898), 24



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7510 REAL PROPERTY LAW.

f S 300, 301. Recording InBtniments affecting real property. 1$. 1909, ch. 52.

Misc. 381, 53 N. Y. Supp. 402. A certificate of acknowledgment taken before a
notary of another state cannot be read in evidence here. Johnston v. Granger
(1896), 17 Misc. 54, 39 N. Y. Supp. 848. So, an affidavit taken before a notary of
another state cannot be read in evidence here. Turtle v. Turtle (1898), 31 App.
Div. 49, 52 N. Y. Supp. 857. But if such an affidavit be authenticated as required
by § 311, post, it may be used upon a motion in the courts of this state. Isman
V. Waybum (1907), 54 Misc. 86, 104 N. Y. Supp. 491; Levy v. Levy (1899), 29
Misc. 374, 60 N. Y. Supp. 485.

A deed of assignment executed in another state is inadmissible in evidence where
the certificate of acknowledgment fails to state that the officer taking it was
authorized by law to do so, or that he knew or had satisfactory evidence that the
person making the acknowledgment was the individual described in and who exe-
cuted the instrument Johnston v. Granger (1896), 17 Misc. 54, 39 N. Y. Supp. 848.

§ 300. Acknowledgments and proofs in Porto Bico, the Philippines, Cuba,
and elsewhere. — If the party or parties executing such conveyance shall be
or reside in Porto Rico, the Philippine islands, Cuba, or in any other place
over which the United States of America at the time has or exercises sover-
eignty, control, or a protectorate, the same may be acknowledged or proved
before :

1. A judge or clerk of a court of record thereof, acting within his juris-
diction ;

2. A mayor or other chief oflScer of a city, acting in such city ;

3. A commissioner appointed for the purpose by the governor of this
state and acting within his jurisdiction ;

4. An officer of the United States regular army or volunteer service of
the rank of captain or higher, or an officer of the United States navy of the
rank of lieutenant or higher, while on duty at the place where such party or
parties are or reside.

The certificate of an acknowledgment taken before any of the officers men-
tioned in subdivision one, two or three of this section, shall have attached
thereto the seal of the court or officer if he have a seal, and if such officer
have no seal, then a statement to that effect. The certificate of an acknowl-
edgment taken before an officer of the army or navy mentioned in subdi-
vision four of this section, shall state his rank, the name of the city, or
other political division where taken, and the fact that he is on duty there,
and shall be authenticated by the secretary of war or the secretary of the
navy, as the case may be, of the United States.

Source. — Former Real Prop. L. (L. 1896, ch. 547) S 249-a, as added by L. 1901,
ch. 84, amended by L. 1906, ch. 398.

§ 301. Acknowledgments and proofs in foreign countries. — The acknowl-
edgment, or proof, of a conveyance of real property situated within this
state, may be made without the United States before any of the following
officers :

1. An ambassador, a minister plenipotentiary, a minister extraordinary,
a minister resident, or a charge d'affaires of the United States, accredited
to the country, in which the acknowledgment or proof is taken, and re-
siding therein.



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REAL PROPERTY LAW. 7511

Lk 1909, ch. 62. Recording Instruments affecting real property. § 801.

2. A consul-general, a vice-consul-general, a deputy-consul-general, a
consul, a vice-consul, a deputy-consul, a consular agent, a vice-consular
agent, a commercial agent, or a vice-commercial agent of the United States,
if residing within the country to which he is appointed, or a secretary of
l^ation at the post, port, place or within the limits of his legation.

3. A commissioner appointed for the purpose by the governor, and
acting within his own jurisdiction.

4. A person specially authorized for that purpose by a commission,
under the seal of the supreme court of this state, issued to a reputable
person residing in, or going to, the country where the acknowledgment or
proof is to be taken.

5. If within the Dominion of Canada, it may also be made before any
judge of a court of record; or before any oflScer of a province or terri-
tory of such Dominion authorized by the laws of such province or Do-
minion to take the acknowledgment or proof of deeds to be recorded
therein.

6. If within the United Kingdom of Great Britain and Ireland or the
dominions thereunto belonging, it may also be made before the mayor, the
provost or other chief magistrate of a city or town therein, under his
liand and the seal of such city or town.

7. All acts of ambassadors, ministers, plenipotentiary, ministers ex-
traordinary, ministers resident, charg& d'affaires and secretaries of lega-
tion, in taking the acknowledgment or proof of a conveyance of real
property situated within this state, performed before April twenty-ninth,
nineteen hundred and four, are hereby confirmed, provided that the cer-
tificate of acknowledgment or proof is in the form required by the laws of
this state.

8. If within the states comprising the empire of Germany or within
the kingdom of Italy, it may also be made before a judge of a court of
Tecord under the seal of such court, or before a notary public under the
:seal of his ofSce and the seal of the city or town in which the notary
resides. {8ubd. 8, amended by L, 1915, ch. 28.)

9. If within the empire of Austria, kingdom of Hungary and kingdoms,
estates, territories and provinces comprising the monarchy. of Austria-Hun-
rgary, it may also be made before a judge or clerk of a court of record under
'the seal of such court or before an imperial royal notary or royal notary
under the seal of his ofBces and the seal of the city or town in which such
notary resides. {8ubd. 9, added hy L. 1912, eh. 70.)

10. If within the kingdom of Norway, Sweden or Denmark or if within
sny of their kingdoms, states, colonies, dependencies, territories, provinces,
political subdivisions or dominions thereunto belonging, including Green-
land and Iceland, it may be made before a judge or a clerk of a court of
record therein under his hand and the seal of such court, or before the
mayor or other chief magistrate of a city or town therein under his hand
and the seal of such city or town, or before a notary public therein under



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7512 REAL PROPERTY LAW.

§ 302. Recording instruments affecting real property. L. 1969, ch. 52.

his hand and the seal of his office and the seal of the city or town in which
the notary resides, or before a sheriff therein, under his hand and the
seal of the city or town in which the sheriff resides, or before a consul-
general, a vice-consul-general, a deputy-consul-general, a consul, a vice-
consul, a deputy-consul, a consular agent, a vice-consular agent, a com-
mercial agent or a vice-commercial agent, of either Norway, Sweden or
Denmark accredited to the place in which the acknowledgment or proof
is taken, and residing therein if under the hand and seal of his office or
the seal of the consulate or legation to which he is attached. {Subd. 10,
added by L. 1916, ch. 395.)

Source. — ^Former Real Prop. L. (L. 1896, ch. 547) § 260, as amended by L.
1901, ch. 611; L. 1903, ch. 98; L. 1904, chs. 528, 690; L. 1908, ch. 61; originally re-
vised from R. S., pt. 2, ch. 3, §§ 5, 6, as amended by L. 1883, ch. 80, and §S 7, 8; L.
1829, ch. 222; L. 1863, ch. 246, as amended by L. 1888, ch. 246; L. 1870, ch. 208;
L. 1848, ch. 195, as amended by L. 1893, ch. 123.

Consolidators' note. — ^This section of the old Real Property Law is left in the
language in which the various amendments to L. 1896, ch. 547, have put it, except
that the indefinite article has been placed before the titles of the various func-
tionaries mentioned, so as to make plain who is intended. In subds. 1 and 2, the
language is made less obscure by the proposed amendments. The acts amending
this section and now embodied in it were not always precisely framed.

A power of attorney may be acknowledged before a vioe-consal of the United
States. Brown v. Landon (1883), 30 Hun 57, affd. (1885), 98 N. Y. 634. See also
Ross V. Wigg (1884), 34 Hun 192, 203.

Acknowledgment in Switzerland. — ^An acknowledgment, the venue of which is as
follows:

"Confederation of Switzerland,^
"Canton de Vaud,
"City of Vevey,

and which recites, "on this 28th day of May ♦ ♦ ♦ before me, William Cu§nod,
Consular Agent of the United States of America, in and for the said City of Vevey,
at said City of Vevey, personally appeared," sufficiently shows that the consular
agent who took the acknowledgment resided in Switzerland. Jordan v. Underbill
(1904), 91 App. Div. 124, 86 N. Y. Supp. 620.

Acknowledgment in Ckrmany. — Subdivision 8 is not complied with where no "seal
of the city or town in which the notary resides" appears upon the document.
Matter of Kroog (1915), 89 Misc. 35, 152 N. Y. Supp. 553. ,

§ 302. Acknowledgments and proofs by married women. — The acknowl-
edgment or proof of a conveyance of real property, within the state, or
of any other written instrument, may be made by a married woman the
same as if unmarried.

Source. — ^Former Real Prop. L. (L. 1896, ch. 547) § 251; originally revised from
L. 1879, ch. 249, as amended by L. 1880, ch. 300, superseding R. S., pt. 2, ch. 3, § 10.

Effect of section. — ^This section abolished the rule requiring a private examina-
tion of a married woman upon her acknowledgment of a written instrument
Wronkow v, Oakley (1892), 64 Hun 217, 19 N. Y. Supp. 51, revd. (1892), 133 N. Y.
505, 31 N. E. 521, 16 L. R. A. 209. As to the former rule, see Delafield v. Brady
(1888), 108 N. Y. 524, 15 N. E. 428; Bradley v. Walker (1893), 138 N. Y. 291, 33
N. E. 1079; Albany Fire Ins. Co. v. Bay (1850), 4 N. Y. 9, 12.

A deed executed by a married woman in 1858 is valid, notwithstanding the fact



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REAL PROPERTY LAW. 7513

L. 1909, ch. 52. Recording infftruments affecting real property. { 303.

that the acknowledgment or proof .of execution makes, no reference to the fact that
the grantor was a married woman. Hulse v. Bacon (1899), 40 App. Div. 89, 57
N. Y. Supp. 537, affd. (1901), 167 N. Y. 599, 60 N. E. 1113.

§ 303. Requisites of acknowledgments. — ^An acknowledgment must not
be taken by any officer unless he knows or has satisfactory evidence, that
the person making it is the person described in and who executed such
instrument.

Source. — Former Real Prop. L. (L. 1896, ch. 547) { 252; originally revised from
R, S., pt 2, ch. 3, § 9.

Form and saffloiency of acknowledgment.-p-A certificate of proof or acknowledg-
ment need not be in the precise language of the statute, but is to be liberally
construed, and is enough if it shows a substantial compliance with the statute.
Canandaigua Academy v. McKechnie (1879), 19 Hun 62, 68; Smith v. Boyd
(1886), 101 N. Y. 472, 5 N. E. 319. See also Fryer v. Rockefeller (1875), 63 N. Y.
268.

The omission of the letters ''ss'' from the venue in an affidavit sworn to before
a commissioner of deeds, does not invalidate the oath or render the affidavit
a nullity. Babcock v. Kuntzsch (1895), 85 Hun 33, 32 N. Y. Supp. 587.

Knowledge of oi&cers; sni&cienoy of statement. — ^An acknowledgment which does
not state that the officer taking it kSiew or had satisfactory evidence that the person
making such acknowledgment was the individual described in and who executed
the conveyance is defective. Moran v. Stader (1907), 52 Misc. 385, 103 N. Y.
Supp. 175. See also Veit v. Schwob (1908), 127 App. Div. 171, 173, 111 N. Y. Supp.
286. But such defect may be cured by the testimony of the notary that he knew
the grantors personally, knew them to be the parties described, and that they
properly acknowledged the deed. Hutton v. Webber (1892), 17 N. Y. Supp. 463.

Certificate of acknowledgment of deed must state that the person making it
was known to be the same person described in and who executed it. Garolan v.
Yoran (1905), 104 App. Div. 488, 93 N. Y. Supp. 935; aifd. (1906), 186 N. Y. 575. 79
N. B. 1102.

A certificate of acknowledgment which states that at a specified time and place
"before me personally appeared" certain persons named, "to me known and known
by me to be the parties executing the foregoing instrument and acknowledged
that said instrument by them executed to be their free act and deed," is defective
in that it fails to state as required by the statute that the parties appearing were
the persons described in and who executed the instrument. This is true although
the persons named in the acknowledgment bear the same names as the persons
named in the body of the instrument. Gross v. Rowley (1911), 147 App. Div. 529,
132 N. Y. Supp. 541.

A commissioner of deeds when taking the acknowledgment to an agreement
restricting the use of lands made by the agent of the owner, or that the power of at-
torney was exhibited and known to him. He need only certify that the person
executing the agreement was known to him to 'be the person described in and who
executed the instrument. GJoodhue v. Cameron (1911), 142 App. Div. 470, 127 N. Y.
Supp. 120.

A certificate of acknowledgment taken without the State of New York to a power
of attorney, in which certificate the notary certifies that on a certain day,
"personally appeared before me the within named James Monroe Cruser, to me
known and acknowledged the above letter of attorney to be his act and deed," is
insufficient to entitle the power of attorney to be recorded in the State of New
York, in that it does not state that the notary knew the person who so appeared



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7514 REAL PROPBETY LAW.

§{ 304, 306. Recording instruments affecting real property. L. 1909, ch. 52.

before him to be the person described in and who executed the power of attorney.
Freedman y. Oppenheim (1903), 80 App. Diy. 487, 81 N. Y. Supp. 110.

HandamuB. — ^A notary public may be compelled to certify that he knew the
person signing the instrument acknowledged. People ex rel. SayylUe Co. y.
Kempner (1900), 49 App. Div. 121, 63 N. Y. Supp. 199.

§ 304. Proof by subscribing witness. — ^When the execution of a convey-
ance is proved by a subscribing witness, such witness must state his own
place of residence, and that he knew the person described in and who
executed the conveyance. The proof must not be taken unless the officer
is personally acquainted with such witness, or has satisfactory evidence
that he is the same person, who was a subscribing witness to the convey-
ance.

Source. — ^Former Real Prop. L. (L. 1896, ch. 647) § 253; originally revised from
R. S., pt. 2, ch. 3, § 12.

Application. — Section must be substantially complied with. See Irving v. Camp-
bell (1890), 121 N. Y. 353, 360, 24 N. E. 821, 8 L. R. A. 620; Trustees Canandarqua
Academy v.| McKechnie (1882), 90 N. Y. 618. Where a deed of land has been
duly acknowledged, it is not necessary, for the purpose of proving its execution,
to call the subscribing witness. Simmons v. Havens (1886), 101 N. Y. 427, 433,
5 N. E. 73.

A notary who took an acknowledgment outside his own county, cannot be
deemed a subscribing witness. Mut. Life Ins. Co. v. Corey (1889), 54 Hun 493,
498, 7 N. Y. Supp. 939, revd. (1892); 135 N. Y. 326, 31 N. E. 1095.

A certiflcate of the proof of the execution of a deed by a subscribing witness, which
states that the witness resides in the city of Bergen, without naming the State,



Online LibraryNew York (State)Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index → online text (page 37 of 137)