NOTARY PUBLIC LICENSE LAW
Definitions and General Terms
ACKNOWLEDGMENT - A formal declaration before a duly authorized officer by a person who has executed an instrument that such execution is his act and deed. Technically, an “acknowledgment” is the declaration of a person described in and who has
executed a written instrument, that he executed the same. As commonly used, the term means the certificate of an officer, duly empowered to take an acknowledgment or proof of the conveyance of real property, that on a specified date “before me came
................, to me known to be the individual described in and who executed the foregoing instrument and acknowledged that he executed the same.” The purposes of the law respecting acknowledgments are not only to promote the security of land
titles and to prevent frauds in conveyancing, but to furnish proof of the due execution of conveyances (Armstrong v. Combs, 15 App. Div. 246) so as to permit the document to be given in evidence, without further proof of its execution, and make it
a recordable instrument.
The Real Property Law prescribes: Ҥ303. 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.”
The thing to be known is the identity of the person making the acknowledgment with the person described in the instrument and the person who executed the same. This knowledge must be possessed by the notary (Gross v. Rowley, 147 App. Div. 529),
and a notary must not take an acknowledgment unless the notary knows or has proof that the person making it is the person described in and who executed the instrument (People v. Kempner, 49 App. Div. 121). It is not essential that the person who
executed the instrument sign his name in the presence of the notary.
Taking acknowledgments over the telephone is illegal and a notary public is guilty of a misdemeanor in so acting. In the certificate of acknowledgment a notary public declares: “On this ......... day of ..................... 19 ......, before me
came ......... to me known,” etc. Unless the person purporting to have made the acknowledgment actually and personally appeared before the notary on the day specified, the notary’s certificate that he so came is palpably false and fraudulent. (Matter
of Brooklyn Bar Assoc., 225 App. Div. 680.)
Interest as a disqualification. A notary public should not take an acknowledgment to a legal instrument to which the notary is a party in interest. (Armstrong v. Combs, 15 App. Div. 246.)
Fraudulent certificates of acknowledgment. A notary public who knowingly makes a false certificate that a deed or other written instrument was acknowledged by a party thereto is guilty of forgery in the second degree, which is punishable by
imprisonment for a term of not exceeding seven years (Penal Law, §§170.10 and 70.00 [2(d)]. The essence of the crime is false certification, intention to defraud. (People v. Abeel, 182 NY 415.) While the absence of guilty knowledge
or criminal intent would absolve the notary from criminal liability, the conveyance, of which the false certification is an essential part, is a forgery and, therefore, invalid. (Caccioppoli v. Lemmo, 152 App. Div. 650.)
Damages recoverable from notary for false certificate. Action for damages sustained where notary certified that mortgagor had appeared and acknowledged a mortgage. (Kainz v. Goldsmith, 231 App. Div. 171.)
ADMINISTRATOR - A person appointed by the court to manage the estate of a deceased person who left no will.
AFFIANT - The person who makes and subscribes his signature to an affidavit.
AFFIDAVIT - An affidavit is a signed statement, duly sworn to, by the maker thereof, before a notary public or other officer authorized to administer oaths. The venue, or county wherein the affidavit was sworn to should be accurately stated.
But it is of far more importance that the affiant, the person making the affidavit, should have personally appeared before the notary and have made oath to the statements contained in the affidavit as required by law. Under the Penal Law (§210.00) the
willful making of a false affidavit is perjury, but to sustain an indictment therefore, there must have been, in some form, in the presence of an officer authorized to administer an oath, an unequivocal and present act by which the affiant consciously
took upon himself the obligation of an oath; his silent delivery of a signed affidavit to the notary for his certificate, is not enough. (People v. O’Reilly, 86 NY 154; People ex rel. Greene v. Swasey, 122 Misc. 388; People v. Levitas(1963)
40 Misc. 2d 331.) A notary public will be removed from office for preparing and taking the oath of an affiant to a statement that the notary knew to be false. (Matter of Senft, August 8, 1929; Matter of Trotta, February 20, 1930; Matter
of Kibbe, December 24, 1931.)
The distinction between the taking of an acknowledgment and an affidavit must be clearly understood. In the case of an acknowledgment, the notary public certifies as to the identity and execution of a document; the affidavit involves the
administration of an oath to the affiant. There are certain acknowledgment forms which are a combination of an acknowledgment and affidavit. It is incumbent on the notary public to scrutinize each document presented to him and to ascertain the exact
nature of the notary’s duty with relation thereto.
An affidavit differs from a deposition in that an affidavit is an ex parte statement.
AFFIRMATION - A solemn declaration made by persons who conscientiously decline taking an oath; it is equivalent to an oath and is just as binding; if a person has religious or conscientious scruples against taking an oath, the notary public
should have the person affirm. The following is a form of affirmation: “Do you solemnly, sincerely, and truly, declare and affirm that the statements made by you are true and correct.”
APOSTILE - Department of State authentication attached to a notarized and county-certified document for possible international use.
ATTEST - To witness the execution of a written instrument, at the request of the person who makes it, and subscribe the same as a witness.
ATTESTATION CLAUSE - That clause (e.g. at the end of a will) wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same.
AUTHENTICATION (NOTARIAL) - A certificate subjoined by a county clerk to any certificate of proof or acknowledgment or oath signed by a notary; this county clerk’s certificate authenticates or verifies the authority of the notary public to
act as such. (See section 133, Executive Law.)
BILL OF SALE - A written instrument given to pass title of personal property from vendor to vendee.
CERTIFIED COPY - A copy of a public record signed and certified as a true copy by the public official having custody of the original. A notary public has no authority to issue certified copies. Notaries must not certify to the authenticity
of legal documents and other papers required to be filed with foreign consular officers. Within this prohibition are certificates of the following type:
| “United States of America |
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| State of New York |
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| County of New York |
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“I ..................., a notary public of the State of New York, in and for the county of ............, duly commissioned, qualified and sworn according to the laws of the State of New York, do hereby certify and declare that I verily believe the
annexed instrument executed by ............ and sworn to before ............, a notary public of the State of ......., to be genuine in every respect, and that full faith and credit are and ought to be given thereto.
“In testimony whereof I have hereunto set my hand and seal at the City of ........, this .......... day of ............, 19.... (Seal) (Notarial Signature.)”
Concerning such a notarial certificate it has been held:
“The law has made specific provisions for the manner in which papers may be certified as to authenticity and originality. While in this individual case there may be no indication of deceiving nor any deception, nevertheless it is a practice which may
become subject to deception and therefore the requirements as laid down by the law for the conduct of notaries should be most strictly enforced.” (Op. Atty. Gen.)
The making of a useless certificate and the collection of a fee therefore, by a notary public, after the notary has had official warning against such practices, justifies a conclusion of misconduct which warrants the notary’s removal from office. (Op.
Atty. Gen., May 26, 1931.) But a notarial certificate that an attached copy of a paper is a true and exact copy of the original document is not within the ban of the last mentioned opinion, for the reason that while this form of certificate does not
permit the copy of the paper to be read in evidence, it might be accepted by certain persons as sufficient proof of the correctness of the copy and, accordingly, it cannot be said to be entirely valueless. (Op. Atty. Gen., Aug. 22, 1933.)
CHATTEL - Personal property, such as household goods or fixtures.
CHATTEL PAPER - A writing or writings which evidence both an obligation to pay money and a security interest in a lease or specific goods. The agreement which creates or provides for the security interest is known as a security agreement.
CODICIL - An instrument made subsequent to a will and modifying it in some respects.
CONSIDERATION - Anything of value given to induce entering into a contract; it may be money, personal services, or even love and affection.
CONTEMPT OF COURT - Behavior disrespectful of the authority of a court which disrupts the execution of court orders.
CONTRACT - An agreement between competent parties to do or not to do certain things for a legal consideration, whereby each party acquires a right to what the other possesses.
CONVEYANCE (DEED) - Every instrument, in writing, except a will, by which any estate or interest in real property is created, transferred, assigned or surrendered.
COUNTY CLERK’S CERTIFICATE - See “Authentication (Notarial).”
DEPONENT - One who makes oath to a written statement. Technically, a person subscribing a deposition but used interchangeably with “Affiant.”
DEPOSITION - The testimony of a witness taken out of court or other hearing proceeding, under oath or by affirmation, before a notary public or other person, officer or commissioner before whom such testimony is authorized by law to be
taken, which is intended to be used at the trial or hearing.
DURESS - Unlawful constraint exercised upon a person whereby he is forced to do some act against his will.
ESCROW - The placing of an instrument in the hands of a person as a depository who on the happening of a designated event, is to deliver the instrument to a third person. This agreement, once established, should be unalterable.
EXECUTOR - One named in a will to carry out the provisions of the will.
EX PARTE (FROM ONE SIDE ONLY) - A hearing or examination in the presence of, or on papers filed by, one party and in the absence of the other.
FELONY - A crime punishable by death or imprisonment in a state prison.
GUARDIAN - A person in charge of a minor’s person or property.
JUDGMENT - Decree of a court declaring that one individual is indebted to another and fixing the amount of such indebtedness.
JURAT - A jurat is that part of an affidavit where the officer (notary public) certifies that it was sworn to before him. It is not the affidavit.
The following is the form of jurat generally employed:
“Sworn to before me this........day of........, 19....”
Those words placed directly after the signature in the affidavit stating that the facts therein contained were sworn to or affirmed before the officer (notary public) together with his official signature and such other data as required by section 137 of
the Executive Law.
LACHES - The delay or negligence in asserting one’s legal rights.
LEASE - A contract whereby, for a consideration, usually termed rent, one who is entitled to the possession of real property transfers such right to another for life, for a term of years or at will.
LIEN - A legal right or claim upon a specific property which attaches to the property until a debt is satisfied.
LITIGATION - The act of carrying on a lawsuit.
MISDEMEANOR - Any crime other than a felony.
MORTGAGE ON REAL PROPERTY - An instrument in writing, duly executed and delivered that creates a lien upon real estate as security for the payment of a specified debt, which is usually in the form of a bond.
NOTARY PUBLIC - A public officer who executes acknowledgments of deeds or writings in order to render them available as evidence of the facts therein contained; administers oaths and affirmations as to the truth of statements contained in
papers or documents requiring the administration of an oath. The notary’s general authority is defined in section 135 of the Executive Law; the notary has certain other powers which can be found in the various provisions of law set forth earlier in this
publication.
OATH - A verbal pledge given by the person taking it that his statements are made under an immediate sense of his responsibility to God, who will punish the affiant if the statements are false.
Notaries public must administer oaths and affirmations in manner and form as prescribed by the Civil Practice Law and Rules, namely:
§2309(b) Form. An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.
An oath must be administered as required by law. The person taking the oath must personally appear before the notary; an oath cannot be administered over the telephone (Matter of Napolis, 169 App. Div. 469), and the oath must be administered in the
form required by the statute (Bookman v. City of New York, 200 NY 53, 56).
When an oath is administered the person taking the oath must express assent to the oath repeated by the notary by the words “I do” or some other words of like meaning.
For an oath or affirmation to be valid, whatever form is adopted, it is necessary that: first, the person swearing or affirming must personally be in the presence of the notary public; secondly, that the person unequivocally swears or affirms that what
he states is true; thirdly, that he swears or affirms as of that time; and, lastly, that the person conscientiously takes upon himself the obligation of an oath.
A notary public does not fulfill his duty by merely asking a person whether the signature on a purported affidavit is his. An oath must be administered.
A corporation or a partnership cannot take an oath; an oath must be taken by an individual.
A notary public cannot administer an oath to himself.
The privileges and rights of a notary public are personal and cannot be delegated to anyone.
PLAINTIFF - A person who starts a suit or brings an action against another.
POWER OF ATTORNEY - A written statement by an individual giving another person the power to act for him.
PROOF - The formal declaration made by a subscribing witness to the execution of an instrument setting forth his place of residence, that he knew the person described in and who executed the instrument and that he saw such person execute
such instrument.
PROTEST - A formal statement in writing by a notary public, under seal, that a certain bill of exchange or promissory note was on a certain day presented for payment, or acceptance, and that such payment or acceptance was refused.
SEAL - The laws of the State of New York do not require the use of seals by notaries public. If a seal is used, it should sufficiently identify the notary public, his authority and jurisdiction. It is the opinion of the Department of State
that the only inscription required is the name of the notary and the words “Notary Public for the State of New York.”
SIGNATURE OF NOTARY PUBLIC - A notary public must sign the name under which he was appointed and no other. In addition to his signature and venue, the notary public shall print, typewrite or stamp beneath his signature in black ink, his
name, the words “Notary Public State of New York,” the name of the county in which he is qualified, and the date upon which his commission expires (section 137, Executive Law).
When a woman notary marries during the term of office for which she was appointed, she may continue to use her maiden name as notary public. However, if she elects to use her marriage name, then for the balance of her term as a notary public she must
continue to use her maiden name in her signature and seal when acting in her notarial capacity, adding after her signature her married name, in parentheses. When renewing her commission as a notary public, she may apply under her married name or her
maiden name. She must then perform all her notarial functions under the name selected.
A member of a religious order, known therein by a name other than his secular cognomen, may be appointed and may officiate as a notary public under the name by which he is known in religious circles. (Op. Atty. Gen., Mar. 20, 1930.)
STATUTE - A law established by an act of the Legislature.
STATUTE OF FRAUDS - State law which provides that certain contracts must be in writing or partially complied with, in order to be enforceable at law.
STATUTE OF LIMITATIONS - A law that limits the time within which a criminal prosecution or a civil action must be started.
SUBORDINATION CLAUSE - A clause which permits the placing of a mortgage at a later date which takes priority over an existing mortgage.
SUNDAY - A notary public may administer an oath or take an affidavit or acknowledgment on Sunday. However, a deposition cannot be taken on Sunday in a civil proceeding.
SWEAR - This term includes every mode authorized by law for administering an oath.
TAKING AN ACKNOWLEDGMENT - The act of the person named in an instrument telling the notary public that he is the person named in the instrument and acknowledging that he executed such instrument; also includes the act of the notary public in
obtaining satisfactory evidence of the identity of the person whose acknowledgment is taken.
The notary public “certifies to the taking of the acknowledgment” when the notary signs his official signature to the form setting forth the fact of the taking of the acknowledgment.
VENUE - The geographical place where a notary public takes an affidavit or acknowledgment. Every affidavit or certificate of acknowledgment should show on its face the venue of the notarial act. The venue is usually set forth at the
beginning of the instrument or at the top of the notary’s jurat, or official certification, as follows: “State of New York, County of (New York) ss.:”. Section 137 of the Executive Law imposes the duty on the notary public to include the venue of
his act in all certificates of acknowledgments or jurats to affidavits.
WILL - The disposition of one’s property to take effect after death.
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