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"Out of state notaries who notarize affidavits(of service)must be accompanied by a certification of the notary. I wonder how many foreclosures are involved in this mess! "

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*** This section is current through 2013 released chapters 1-16, 50-55 ***

CIVIL PRACTICE LAW AND RULES

ARTICLE 23. SUBPOENAS, OATHS AND AFFIRMATIONS

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NY CLS CPLR § 2309 (2013)

§ 2309. Oaths and affirmations

(a) Persons authorized to administer. Unless otherwise provided, an oath or affirmation may be administered by any person authorized to take acknowledgments of deeds by the real property law. Any person authorized by the laws of this state to receive evidence may administer an oath or affirmation for that purpose. An oath to a juror or jurors may be administered by a clerk of court and his deputies. This section shall not apply to an oath of office.

(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.

(c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

(d) Form of certificate of oath or affirmation administered by officer of the armed forces of the United States. The certificate of an oath or affirmation administered within or without the state or the United States, by an officer of the armed forces of the United States authorized by the real property law to take acknowledgment of deeds, shall state:

1. the rank and serial number of the officer before whom the oath or affirmation is taken and the command to which he is attached;

2. that the person taking the oath or affirmation was, at the time of taking it, a person enlisted or commissioned in or serving in or with the armed forces of the United States or the dependent of such a person, or a person attached to or accompanying the armed forces of the United States; and

3. the serial number of the person who takes, or whose dependent takes the oath or affirmation, if such person is enlisted or commissioned in the armed forces of the United States. The place where such oath or affidavit is taken need not be disclosed.

HISTORY:

Add, L 1962, ch 308, § 1, eff Sept 1, 1963.

Sub (a), amd, L 1964, ch 287, § 1, eff Sept 1, 1964.

Sub (c), amd, L 1963, ch 282, § 2, eff Sept 1, 1963.

Sub (d), add, L 1963, ch 532, § 14, eff Sept 1, 1963.

Earlier statutes and rules: CPA §§ 357-365; RCP 53; CCP §§ 443, 842, 843, 845-850, 1016, 2 RS 284 § 49; 2 RS 384 § 44; 2 RS 407 §§ 82-86; 2 RS 408 § 89; 2 RS 552 § 11; Gen Rules Pr 18.

NOTES:

Advisory Committee Notes

The first sentence of subd (a) is based upon § 12 of the Gen. Const. Law, which deals with oaths on affidavits. The persons named in former CPA §§ 357, 359 as empowered to take oaths were, for the most part, the same as those specified in §§ 298-301 and 313-a of the Real Property Law. The only discrepancies are that city magistrates were named in § 357 of the CPA and are not included in § 298 of the Real Propery Law; that recorders are mentioned in § 298 of the Real Property Law but not in the former CPA; and that, while persons enlisted or commissioned in the armed forces might have administered oaths under CPA § 359, only officers in the armed forces can take acknowledgments under § 300 of the Real Property Law. City magistrates obtain the power they need under the second sentence of this subdivision, discussed below. For the sake of uniformity, and in accordance with the provisions of the General Construction Law, the list of persons in the Real Property Law has been followed. See the similar provisions of rule 3113(a) 2 and 3 dealing with persons before whom a deposition may be taken outside the state. The omission of the provision of the second sentence of former CPA § 359 regarding military affidavits effects no change in former law since the provision also appears in § 300 of the Real Property Law, and is thus included in the reference made by this subdivision. This subdivision is not exclusive. The many specific grants of power to administer oaths contained in the substantive laws of the state are unaffected by it. Some statutory provisions limit the class of persons who may administer a particular oath. This subdivision does not affect these statutes in view of the phrase "unless otherwise provided." The second sentence of this subdivision is derived from the first sentence of former CPA § 358 without change in substance. An official's authority to administer oaths under this sentence is parallel to his power to issue subpoenas pursuant to § 2302. Former CPA § 358 was taken verbatim from § 843 of the Code of Civil Procedure, which was derived, without change, from § 843 of chapter 416 of the laws of 1877. Prior to that, the revised statutes provided that "[w]henever applications shall be made to the commissioners of the landoffice, the canal board, canal commissioners, or any of them, or to any other public officer, to do any act in an official capacity, and such board or officer shall require information or proof, to enable them or him to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit and any member of such board, or such officer, may administer all necessary oaths for that purpose." 3 NY Rev Stat c 8, tit 17, § 11 (1st ed 1829). While this provision was essentially embodied in the first sentence of CPA § 358, the derivation and meaning of the last sentence of such former section was not entirely clear. It appeared to authorize an official to use affidavits. If it was read to authorize the official to administer the oath on affidavits he might have received, it added little to the first sentence; and if read literally it had no relevance to oaths, but embodied a general rule as to the form of proof before administrative agencies. This sentence was omitted from this subdivision with no intention to deprive officials of power to utilize affidavits as proof in performing their duties. See 1 Benjamin, Administrative Adjudication in New York 181-194 (1942); Richardson, Evidence § 213 (8th ed, Prince 1955). The exceptions stated in the third sentence are similar to those in CPA § 357; § 357 also excluded oaths administered to witnesses at a trial but such oaths have been integrated into this subdivision. A body or court may limit the class, or specify the person, who may administer oaths before it as part of its power to control its proceedings, so long as the person or class is authorized to give the oath under this subdivision or any other provision of law.

Subd (b) of this section was based on Arizona law. Ariz Rev Stat Ann § 12-2221 (1956). Similar provisions are to be found in other jurisdictions. See Ind Ann Stat § 2-1711 (1946); Mo Ann Stat § 492.040 (1952); Tex Rev Civ Stat art 25 (1947). It has long been the practice to vary the forms and mode of administration of the oath to conform to the beliefs of the person taking it. See Tyler, Oaths; Their Origin, Nature, and History 89-96 (1934); 6 Wigmore, Evidence §§ 1816-1820 (3d ed 1940). This was recognized in CPA §§ 360-364. Thus, while a usual form of oath is said to have crystallized through tradition (see Bookman v City of New York, 200 NY 53, 93 NE 190 (1910)), the general requirements rather than particular forms or modes of administration of the oath have been set forth in this subdivision. The common denominator of the oaths and affirmations formerly described in the CPA was a solemn ceremony; the case law requires an unequivocal act of assent to tell the truth. See O'Reilly v People, 86 NY 154 (1881); Bookman v City of New York, supra; N. Y. Att'y-Gen., Ann Rep 317-20 (1929). Former CPA § 365 has been omitted. The last clause of that section, which empowered the person administering the oath to inquire of the person to be sworn what "peculiar ceremonies" he deemed most obligatory, is clearly implied in this subdivision. The first clause of former CPA § 365 which empowered the court or officer to examine a person to determine if he was competent, is unnecessary. This is an essential and inherent power which cannot be questioned. See, e.g., 2 Wigmore, Evidence §§ 487, 497 (3d ed 1940); Richardson, Evidence § 117 (8th ed, Prince 1955).

Subd (c) of this section is based on the last part of the first sentence of former CPA § 359. So much of the remainder of that section as dealt with the authority to administer oaths outside the state is included in subd (a) of this section, and the provisions regarding translations are dealt with in article 21.

Revision Notes

[1963, ch 282] This amendment was recommended by the Law Revision Commission. See Leg Doc (1963) No. 65 (I). It amends Real P Law § 312 for the purpose of simplifying the authentication of certificates of notaries of other states and of territories and possessions of the United States. A conforming change is made in § 2309(c) of the Civil Practice Law and Rules.

Treatises & Practice Guides:

Matthew Bender's New York Civil Practice:

Weinstein, Korn & Miller, New York Civil Practice: CPLR Ch. 2309, Oaths and Affirmations

CPLR Manual § 16.13 Oaths and affirmations

1 Carrieri, Lansner, New York Civil Practice: Family Court Proceedings § 2.03

1 Cox, Arenson, Medina, New York Civil Practice: SCPA P 102.01; 2 Cox, Arenson, Medina, New York Civil Practice: SCPA P 708.04

Bender's New York Evidence - CPLR § 2.00 Competency of Witnesses

Bender's New York Evidence - CPLR § 9.12 Governmental and Judicial Facts

Bender's New York Evidence - CPLR § 20.01 Private Writings and Documents

Matthew Bender's New York Practice Guides:

1 New York Practice Guide: Probate and Estate Administration § 14.08

Warren's Weed New York Real Property:

Warren's Weed: New York Real Property §§ 2.06, 2.92

Practice Forms:

Bender's Forms for the Civil Practice Form No. CPLR 2309:1 et seq

LexisNexis Forms FORM 75-CPLR 2309:1--Authenticating Certificate Attached to Affidavit Taken in Other State

LexisNexis Forms FORM 75-CPLR 2309:2--Certificate of Conformity of Oath or Affirmation Taken Without the State

LexisNexis Forms FORM 75-CPLR 2309:3--Certificate of Oath or Affirmation Administered by Officer of Armed Forces of the Untied States

Related Statutes & Rules:

New York References:

Conduct of examination in disclosure, CLS CPLR § 3113

Power of arbitrator to administer oaths, CLS CPLR § 7505

Powers of notaries and commissioners of deeds, CLS Exec §§ 132, 135, 138- 142-a

Construction of words affidavit, oath and swear, CLS Gen Const §§ 12, 36

Power to administer oaths, CLS Pub O § 61

Federal References:

Power to administer oaths in connection with deposition proceedings in United States District Courts, Rule 28(a) of Federal Rules of Civil Procedure, USCS Court Rules

Oath administered to witness in depositions upon oral examination in United States District Court proceedings, Rule 30(c) of Federal Rules of Civil Procedure, USCS Court Rules

Affirmation in lieu of oath in United States District Courts, Rule 43(d) of Federal Rules of Civil Procedure, USCS Court Rules

Subpoena in United States District Court, Rule 45(a) of Federal Rules of Civil Procedure, USCS Court Rules

Administration of oaths and affirmations in United States Tax Court, 26 USCS § 7456

Authority of federal judges and justices to administer oaths, 28 USCS § 459

Administration of oaths and acknowledgments by Clerk of Court, 28 USCS § 953

Administration of oaths and acknowledgments in Court of Federal Claims, 28 USCS §§ 2503, 2504

Administration of oaths and affirmations without fees, 5 USCS § 2904

Research References & Practice Aids:

Jurisprudence:

1 NY Jur 2d Acknowledgements, Affidavits, Oaths, Notaries, and Commissioners §§ 42--44, 59, 60

5 NY Jur 2d Arbitration and Award § 139

28 NY Jur 2d Courts and Judges § 479

44A NY Jur 2d Disclosure § 218

48 NY Jur 2d Domestic Relations § 2032

49 NY Jur 2d Elections § 299

58A NY Jur 2d Evidence and Witnesses § 830

73A NY Jur 2d Jury § 116

58 Am Jur 2d, Oath and Affirmation §§ 1 et seq

13B Am Jur Legal Forms 2d, Oath and Affirmation, Forms 189:11-189:15

1A Am Jur Pl & Pr Forms (Rev), Acknowledgments, Forms 1 et seq

25A Am Jur Pl & Pr Forms (Rev), Witnesses, Forms 136-139

Annotations:

False oath or account as bar to discharge in bankruptcy proceedings. 59 ALR2d 791

Disqualification of attorney, otherwise qualified, to take oath or acknowledgement from client. 21 ALR3d 483

Texts:

1 Frumer & Biskind, Bender's New York Evidence--CPLR § 2.00; 4 Frumer & Biskind, Bender's New York Evidence--CPLR § 9.12; 5 Frumer & Biskind, Bender's New York Evidence--CPLR § 20.01

Case Notes:

I. UNDER CPLR 1. In general 2.--10. [Reserved for future use]

II. UNDER FORMER CIVIL PRACTICE LAWS

A. In General 11. Generally

B. Formalities 12. Generally 13. Effect of defective jurat 14. Curing defect nunc pro tunc 15. Presumptions

C. Who May Administer Oaths 16. Generally 17. Clerk of court 18. Commissioner of deeds 19. Comptroller 20. Notary public 21. Police officer

D. Necessity for Oath or Affirmation 22. Generally 23. Infants 24. Board of canvassers 25. Board of civil service examiners

E. Competency to Take Oath 26. Generally 27. Necessity for preliminary examination 28. Examination before trial

F. Oaths Taken Outside the State 29. Generally 30. Authentication of oath of service outside state or county 31. Consular officer 32. -- Notary public 33. -- Sheriff

I. UNDER CPLR

1. In general

One insane or mentally ill is not per se disqualified from testifying; he may give evidence provided he has sufficient intelligence to understand nature of oath and to give a reasonable account about the subject of interrogation. A witness' capacity is presumed and if objected to, it is for judge in his discretion to determine it. People v Rensing (1964) 14 NY2d 210, 250 NYS2d 401, 199 NE2d 489 (superseded by statute as stated in People v Arthur (1997, Sup) 175 Misc 2d 742, 673 NYS2d 486).

Only an attorney, physician, osteopath or dentist authorized to practice within New York can serve and file an affirmation bearing his signature alone in lieu of and with the same force and effect as an affidavit; moreover, even those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action and, to be effective, such an affirmation must be made before a notary public or other authorized official. Slavenburg Corp. v Opus Apparel, Inc. (1981) 53 NY2d 799, 439 NYS2d 910, 422 NE2d 570.

The trial court properly invalidated the petition on grounds that witnesses on two signature sheets failed to comply with the duty to administer oaths upon the taking of signatures on such sheets, where all one witness did was inform each signatory that she had to "swear" him and have each signatory state that he was who he purported to be, and where the witness to the other sheet did the same thing without any mention of a need to administer an oath, but where the nominating petition nevertheless contained more signatures than the amount required to sustain the candidate's position on the ballot. Andolfi v Rohl (1981, 2d Dept) 83 App Div 2d 890, 442 NYS2d 402, app den (1981) 54 NY2d 603 and app den (1981) 54 NY2d 768, 443 NYS2d 60, 426 NE2d 751.

The trial court properly validated certain signatures that had been taken by a notary public on designating petitions nominating certain candidates for a party primary election, where the notary complied with the requirements of administering an oath pursuant to CPLR § 2309(b) in that he administered the oath in a form "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious and ethical beliefs," where the signature sheets contained the notarial statement required by Elec Law § 6-132(3), and where the signatories read the statement and understood that they were affirming the statement in the petition as true. Quintyne v Canary (1984, 2d Dept) 104 App Div 2d 473, 478 NYS2d 979.

Although both pages of out-of-state affidavit in opposition to defendants' motion for summary judgment in medical malpractice action should have been accompanied by certificate authenticating authority of oath administrator, court properly refused to reject affidavit for technical failure to comply with CLS CPLR § 2309(c), where only result would have been in further delay because affidavit could have been given nunc pro tunc effect once properly acknowledged. Nandy v Albany Medical Center Hosp. (1989, 3d Dept) 155 App Div 2d 833, 548 NYS2d 98.

Written statements submitted by defendant to show reasonable excuse for default and meritorious defense qualified as oaths, even though neither statement said that defendant had been sworn, where statements said that defendant had read them and that they were "true, factual and voluntarily given," and they were also notarized. Collins v AA Trucking Renting Corp. (1994, 1st Dept) 209 App Div 2d 363, 618 NYS2d 801.

Form of oath is flexible and is sufficient if it is calculated to awaken conscience and impress mind of person taking it in accordance with his or her religious or ethical beliefs. People v Wilson (1998, 3d Dept) 255 App Div 2d 612, 679 NYS2d 732, app den (1999) 93 NY2d 981, 695 NYS2d 68, 716 NE2d 1113.

In prosecution for sexual abuse, sodomy, and child endangerment, arising from defendant's involvement with 3 girls of ages 7 to 9, court's colloquy with 7-year-old victim satisfied requirements of oath where that victim unequivocally indicated that she understood that she had to tell truth and that if she did not, she was liable to be punished. People v Wilson (1998, 3d Dept) 255 App Div 2d 612, 679 NYS2d 732, app den (1999) 93 NY2d 981, 695 NYS2d 68, 716 NE2d 1113.

In mortgage foreclosure action, defendant's "affidavit of non-signature" did not raise issue of fact regarding authenticity of her purported signatures on note and mortgage, where each document on its face was properly subscribed and bore acknowledgment of notary public, triggering presumption of due execution which was unrebutted by clear and convincing evidence. Midfirst Bank v Rath (2000, 4th Dept) 270 AD2d 932, 706 NYS2d 651.

In a proceeding pursuant to N.Y. Elec. Law § 16-102, the trial court properly invalidated 20 signatures on a candidate's designating petition because the notaries public witnessing the signatures had neither taken the oaths of the signatories nor obtained any statements from them as to the truth of the statements to which they subscribed their names. Matter of Imre v Johnson (2008, 2d Dept) 54 App Div 3d 427, 863 NYS2d 473.

Motion for summary judgment in favor of an alleged creditor seeking payment on a creditor card debt was error because, inter alia, affidavits provided by the alleged creditor were both signed and notarized outside of New York, were not accompanied by the required certificates of conformity, and the alleged creditor made no attempt to rectify this defect. PRA III, LLC v Gonzalez (2008, 2d Dept) 54 App Div 3d 917, 864 NYS2d 140.

Trial court erred in excluding the affidavits of two affiants, even though they were not accompanied by a certificate of conformity required by N.Y. C.P.L.R. 2309(c), as the absence of a certificate of conformity for an out-of-state affidavit was not a fatal defect. Fredette v Town of Southampton (2012, 2d Dept) 95 App Div 3d 940, 944 NYS2d 206, lv to app den (2012, NY) 2012 NY Slip Op 83570, 2012 NY LEXIS 2084.

Failure to show authenticating certificate on out-of-state affidavit and to show plaintiff's corporate status were amendable irregularities and did not reach the stature of jurisdictional defect and motion to dismiss complaint for lack of jurisdiction was properly denied. Mercantile Nat'l Bank v Wismer (1965) 48 Misc 2d 275, 264 NYS2d 850.

Where authenticating certificate prescribed by CPLR § 2309(c) was missing from Illinois affidavit offered in support of plaintiff's motion for summary judgment although the defect could have been cured by amendment, affidavit was not properly before the court. Mercantile Nat'l Bank v Wismer (1965) 48 Misc 2d 275, 264 NYS2d 850.

Defendant's objection to out-of-state depositions that they were not accompanied by certificates authenticating the commissions of the notaries public thereto as required by CPLR § 2309, subd c, which objection defendant waived under CPLR § 3116, subd e by not making timely motion to suppress under CPLR § 3103, subd c, could not be asserted for reversal on appeal where the absence of such certificates, which were patently in the nature of documentary evidence, was a defect susceptible to correction nunc pro tunc at trial. King v Brown (1972) 72 Misc 2d 560, 340 NYS2d 260.

Under CPLR § 3116, subd e, defendant in personal injury action waived his objection that out-of-state depositions were not accompanied by certificates authenticating the commissions of the notaries public thereto as required by CPLR § 2309, subd c, where defendant failed to move for suppression of said depositions under CPLR § 3103, subd c during the four month period preceding trial. King v Brown (1972) 72 Misc 2d 560, 340 NYS2d 260.

Verification of tax roll was properly sworn by a notary public, who was an "officer of the county" authorized to administer oaths within meaning of Real Property Tax Law § 514. Crockford v Zecher (1973) 74 Misc 2d 1067, 347 NYS2d 105, affd (1974, 4th Dept) 45 App Div 2d 914, 358 NYS2d 978.

Instrument which law firm alleged was power of attorney executed by decedent's widow, who was resident of Albania and who allegedly executed instrument there, failed to comply with section of Real Property Law setting forth requirements for certificate of authentication accompanying certificate of acknowledgment made for notary in foreign country, despite "authentication" made by deputy president of the District Court of Fier, Albania, and by deputy president of the Supreme Court of Albania. In re Estate of Giannopoulos (1977) 89 Misc 2d 961, 392 NYS2d 828.

Court granted plaintiff's motion for default judgment based on affidavit executed in Texas but not accompanied by certificate authenticating authority of person who administered oath, where oath was administered by notary public. Firstcom Broad. Servs. v New York Sound Inc. (2000, Civ Ct) 184 Misc 2d 524, 709 NYS2d 329.

Bank's petition to confirm an arbitration award under N.Y. C.P.L.R. §§ 7510, 7514 was improperly denied because the defect due to the fact that the bank's supporting affidavit was notarized by a Maryland notary public and not accompanied by a certificate of conformity under N.Y. C.P.L.R. § 2309(c) and N.Y. Real Prop. Law § 299-a(1) was merely a defect in form that could be corrected nunc pro tunc and did not prejudice a substantial right of respondent under N.Y. C.P.L.R. §§ 2001, 2101(f). MBNA Am. Bank, N.A., Matter of v Stehly (2008, Sup App T) 19 Misc 3d 12, 855 NYS2d 814.

Exchange by the court with a doctor prior to his testifying at a fact finding hearing on a neglect petition was insufficient to comply with N.Y. C.P.L.R. § 2309(b) as the doctor stated that he did not hold that there was such a thing as the truth; the exchange was supplemented with a request that the doctor affirm that his testimony would be accurate, correct, and complete and a question advising him of the penalties of perjury as the oath was not required to take a particular form under § 2309(b) and N.Y. Gen. Constr. Law § 36. Matter of Breanna M. (2009, Fam Ct) 23 Misc 3d 341, 870 NYS2d 779.

In an assignee's action against a vehicle lessee, the assignee was not entitled to default judgment because (1) an affidavit of service of the summons with notice, executed in Maryland, did not comply with N.Y. C.P.L.R. 2309(c), requiring a certificate of conformity, and (2) the default judgment motion had no affidavit stating notice of default and a copy of the summons were sent to the lessee in a "personal and confidential" envelope required by N.Y. C.P.L.R. 3215(g)(3)(i). Bloomingdale Rd. Judgement Recovery v Wise (2010, Sup) 29 Misc 3d 1078, 912 NYS2d 385.

Bank's failure to attach a certificate of conformity under N.Y. Real Prop. Law § 299-a for oaths taken in states other than New York did not render the moving papers and the affidavit inadmissible proof under N.Y. C.P.L.R. 2309 as the absence of a certificate of conformity for oaths taken out of New York but in sister states was a mere irregularity, not a fatal defect, which could be ignored in the absence of a showing of actual prejudice. LaSalle Bank, NA v Pace (2011, Sup) 31 Misc 3d 627, 919 NYS2d 794.

In a case to enforce a foreign judgment, the creditor's apparent failure to include with her affidavit the certificate authenticating the authority of the one administering the oath which should have accompanied her out-of-state affidavit was not a fatal defect; the debtor had not disputed the authority of the notary or the veracity of the statements in the affidavit, nor had he demonstrated any prejudice resulting from the defect. Sparaco v Sparaco (2003, App Div, 3d Dept) 765 NYS2d 683.

Status of two defense witnesses as officers of the court provided no basis for dispensing with a formal oath, as all persons testifying in a civil action had to go through a swearing ceremony pursuant to N.Y. C.P.L.R. 2309(b). Trensky v Johnson (2003, Sup App T) 770 NYS2d 816.

Because the victim's version of events was repeatedly bolstered and because the prosecutor veered too far into an impermissible discussion in front of the jury regarding a witness's religious beliefs when questioning the witness about a N.Y. C.P.L.R. 2309(b) affirmation/oath, the errors were not harmless. People v Caba (2009, App Div, 3d Dept) 887 NYS2d 709.

Mortgagee's failure to comply with N.Y. C.P.L.R. 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the State but not accompanied with a certificate in conformity with § 2309(c), was not a fatal defect, as such certification could be provided nunc pro tunc, N.Y. C.P.L.R. 2001. U.S. Bank Natl. Assn. v Dellarmo (2012, App Div, 2d Dept) 942 NYS2d 122.

Assignment of judgment was ineffective because, inter alia, it was not accompanied by a certificate of conformity establishing the authority of the notary to take the acknowledgment. Chase Bank USA, N.A. v Cardello (2010, Civ Ct) 243 NYLJ 48, 896 NYS2d 856.

2.--10. [Reserved for future use]

II. UNDER FORMER CIVIL PRACTICE LAWS

A. In General

11. Generally

An oath irregularly administered upon a book other than the holy evangelist, the parties administering it and taking it supposing it was the Bible, is a valid oath. People v Cook (1853) 8 NY 67.

To constitute a valid oath for the falsity of which the affiant may be convicted of perjury, there must be some unequivocal and present act, in presence of an officer authorized to administer oaths, whereby the affiant takes upon himself the obligation of an oath. Where a person delivered to such an officer a paper, purporting to be the affidavit of the person so delivering it, beginning with the usual form "C. O'R.," (the person in question), "being duly sworn, saith," and subscribed by him; and the officer, without any other statement or act on the part of the person so delivering, signed his name to a jurat prepared for the purpose, and the paper was subsequently used. Held, that the person so purporting to have sworn to the affidavit could not be convicted of perjury. O'Reilly v People (1881) 86 NY 154.

Whatever the form adopted in administering an oath, it must be in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. Bookman v New York (1910) 200 NY 53, 93 NE 190.

B. Formalities

12. Generally

Dissents filed under the Mortgage Commission Act (Laws of 1935, chap 19, § 7) were valid, although county clerk's certificates authenticating or attesting the signatures of the various notaries were not attached. In re Lido Club Hotel (1938) 169 Misc 522, 7 NYS2d 619.

Affidavit, taken before notary in New York city who adds to his name, "Notary Public, Kings County, N. Y.," is good. Estate of King, 4 Month L Bull 56.

A jurat in the usual form subscribed and sworn to in the presence of a vice consul. Held, sufficient. City Bank v Lumley, 28 How Pr 397.

13. Effect of defective jurat

Unless accompanied by the certificate as to official character and genuineness of signature the affidavit is a nullity. Cream City Furniture Co. v Squier (1893) 2 Misc 438, 21 NYS 972.

An affidavit although not sufficiently authenticated, to secure its admission in a court in evidence may properly be considered on a motion to vacate an attachment on the papers upon which it was granted as constituting the source from which the plaintiff derived the information which she alleged in the affidavit. Mallon v Rothschild (1902) 38 Misc 8, 76 NYS 710.

A judge is without jurisdiction to grant an order of arrest upon an affidavit sworn to in another state, without the certificate as to the official character and genuineness of the signature of the officer administering the oath. Marks v Goetchius (1908) 60 Misc 143, 112 NYS 1009.

An affidavit executed in another state will not be considered if it has no certificate of the county clerk annexed, where taken, showing the notary to have been authorized to administer oaths. In re Mt. Vernon Dye Casting Corp. (1926) 127 Misc 169, 216 NYS 317.

Where the affidavit of a nonresident defendant in support of his motion to vacate service of a summons upon him pursuant to CPA §§ 232, 233 (§§ 313, 314, 315, 3012(c), Rule 320(a) herein), was not authenticated as required by CPA § 359, it was not considered. Whitman v Vullo (1922, Sup) 197 NYS 577.

An order made on motion on which incompetent affidavit has been read under objection, will not be reversed therefor where the same facts stated therein are stated in other affidavits. Thalheimer v Hays (1886, NY) 42 Hun 93, affd (1887) 107 NY 673, 14 NE 609.

A defective certificate to jurat of affidavit taken out of the state will avoid an order of arrest granted thereon. Harris v Durkee (1884) 50 Super Ct (18 Jones & S) 202; Bowen v Stilwell, 9 Civ Proc 277.

14. Curing defect nunc pro tunc

Judgment in foreclosure against nonresident could be made valid by an order nunc pro tunc curing defect in affidavit of service of summons and complaint consisting in failure to attach certificate of secretary of foreign state as to notary's power to act. Kelly v Schramm (1921) 197 App Div 377, 189 NYS 629.

15. Presumptions

Where an affidavit by its venue, purports to have been taken in the city and county of New York, the presumption is that the person signing himself commissioner of deeds is such in said place. People ex rel. Morgenthau v Cady (1887) 105 NY 299, 11 NE 810.

C. Who May Administer Oaths

16. Generally

Where the statute directs that the affidavits shall be made before some officer authorized to administer oaths, it must be made before an officer generally authorized to administer oaths. Christman v Floyd, 9 Wend 340.

17. Clerk of court

The oath in a proceeding for justification of bail may be administered by the clerk assigned to the court. People v Diaz (1935) 245 App Div 767, 280 NYS 612.

18. Commissioner of deeds

Witnesses in supplementary proceedings may be sworn by a commissioner of deeds. Blake v Bolte (1894) 10 Misc 333, 31 NYS 124, adhered to (1895) 12 Misc 405, 33 NYS 617.

19. Comptroller

The comptroller may, on proceedings had before him to decide the question of validity of tax sales between state and purchaser, swear witnesses produced before him, and receive affidavits, etc. People ex rel. Ostrander v Chapin (1887) 105 NY 309, 11 NE 510.

20. Notary public

Judicial notice was taken that notary public is officer duly authorized by law to take oaths and affidavits. People v Browne (1945) 184 Misc 764, 54 NYS2d 759.

21. Police officer

Policeman may not administer oath taken for information for drunken driving. People v Sledge (1948) 192 Misc 934, 82 NYS2d 462.

D. Necessity for Oath or Affirmation

22. Generally

The inadvertent omission of a deputy police commissioner of the city of New York to administer an oath to a witness, who testified against a patrolman upon one of three charges against him which were then being heard by the commissioner, such witness having been actually sworn and having testified as to one of the other charges, does not invalidate the proceedings where the patrolman, who must have known of the omission, made no objection and cross-examined the witness. People ex rel. Niebuhr v McAdoo (1906) 184 NY 304, 77 NE 260.

23. Infants

Though CPA § 365 provided for a preliminary examination of an infant to ascertain his capacity, this did not permit the court to cast off the safeguard of an oath, as unsworn testimony of a child was inadmissible in a civil case. Stoppick v Goldstein (1916) 174 App Div 306, 160 NYS 947.

Infant's unsworn testimony is inadmissible in civil case. Anesgart v New York (1958) 10 Misc 2d 995, 170 NYS2d 891.

Admission of unsworn testimony of infant constituted reversible error. Schuck v Rao Electrical Equipment Co. (1959) 21 Misc 2d 290, 193 NYS2d 906.

24. Board of canvassers

Under the provision of CPA § 358, which provided that "an officer, person, board or trustee to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose," the state board of canvassers had no power to make an inquiry as to the eligibility of candidate for state senator. People ex rel. Sherwood v Board of State Canvassers (1891) 129 NY 360, 29 NE 345.

25. Board of civil service examiners

A board of civil service examiners appointed by the mayor of a city has power to require applicants for examination to verify their applications, and a verification made in pursuance thereof is not extra judicial, but, if false, justifies a charge of perjury. Foreman v Union & Advertiser Co. (1894) 83 Hun 385, 31 NYS 947.

E. Competency to Take Oath

26. Generally

CPA § 365 cited in construction of Code Criminal Procedure § 392. People v Klein (1935) 266 NY 188, 194 NE 402.

Plaintiff's boy companion, 12 years old, in upper grade of elementary school, was competent witness to identify automobile striking plaintiff and to state its speed. Senecal v Drollette (1952) 304 NY 446, 108 NE2d 602.

On objection by one party that a witness called by the other is incompetent, it is the court's duty, before the proposed witness is sworn, to inquire as to his capacity, and on such examination the court may make a full inquiry of the proposed witness, or of others, as to his capacity. Ellarson v Ellarson (1921) 198 App Div 103, 190 NYS 6.

It having been determined that a child was incapable of understanding the nature of an oath, it was likewise incapable of affirmation. Salmon v Sunday (1929) 134 Misc 475, 235 NYS 672.

27. Necessity for preliminary examination

It was error to put on the stand and swear witnesses under eight years of age, over objections, without an examination by the judge to ascertain their capacity and extent of knowledge. Olshansky v Prensky (1918) 185 App Div 469, 172 NYS 856.

Infant who was 3 years and 10 months old at time of accident, and 9 1/2 years old at trial, is not incompetent as a matter of law to testify as to accident, and excluding his testimony without preliminary examination by court to determine the capacity and extent of his knowledge is reversible error. Rittenhouse v North Hempstead (1960, 2d Dept) 11 App Div 2d 957, 205 NYS2d 564, reh den (1960, 2d Dept) 11 App Div 2d 1071, 207 NYS2d 1019, reh and app den (1960, 2d Dept) 12 App Div 2d 490, 210 NYS2d 493.

28. Examination before trial

Preliminary examination of incompetent is condition precedent to granting or denying pretrial examination, and where failure to make preliminary examination was inadvertence on part of court and litigants, order denying motion should be modified to permit renewal of motion. Fritsch v Central Trust Co. (1941) 262 App Div 551, 30 NYS2d 934.

Infant was directed to appear before a justice for preliminary examination as to his capacity, and if he be found competent to testify his examination was to proceed under the supervision of the justice. Lester v Fischbein (1959, 2d Dept) 8 App Div 2d 618, 185 NYS2d 292.

Party seeking to examine infant adversary before trial is not compelled to submit proof of the infant's capacity on a motion to vacate the notice of examination since this question should be determined by the court or judicial officer before whom the testimony is offered. Lester v Fischbein (1959, 2d Dept) 8 App Div 2d 618, 185 NYS2d 292.

Defendant, seeking pretrial examination of infant by way of notice of motion should show infant's age at time of motion and at time of accident. Palmieri v Salsimo Realty Co. (1952) 202 Misc 251, 115 NYS2d 88.

Infant plaintiff may be examined as adverse party before trial by defendant if infant is found qualified, and it is court's duty to determine child's qualification and to protect its rights during examination. Blagburn v Milrita Realty Corp. (1953) 204 Misc 74, 120 NYS2d 284.

Infant is ordered to appear at Special Term so that presiding justice thereat may make a preliminary determination as to infant's mental capacity to comprehend the obligation of an oath and if infant is found to have sufficient understanding thereof, he will be sworn and examined before trial but if he be found insufficient in understanding, the examination is dispensed with and the motion to examine will be denied. Collins v Polsky (1953) 14 Misc 2d 402, 183 NYS2d 382.

In a probate proceedings, motion to take deposition of witness eighty-five years old and suffering from congested heart failure and other disabilities would be granted, notwithstanding that opposing affidavits indicated that witness was irrational where it was undisputed that witness was not an adjudicated incompetent. In re Will of Ludlam (1957) 5 Misc 2d 159, 158 NYS2d 462.

Infant plaintiff approximately seven years of age may not be examined before trial where no preliminary examination made before court or official referee. La Plant v Atias (1958) 10 Misc 2d 852, 170 NYS2d 896.

Before infant may be examined before trial, his competency must be determined by a court or referee. Anesgart v New York (1958) 10 Misc 2d 995, 170 NYS2d 891.

Until preliminary examination is held to determine whether infant defendant has sufficient mentality to comprehend obligation of oath, court cannot direct infant examination before trial; preliminary examination referred to official referee who will determine items for examination. Bennett v Ros (1950, Sup) 120 NYS2d 283.

Examination before trial of infant plaintiff under oath before notary public is improper. Alsante v Roberts (1953, Sup) 118 NYS2d 683.

F. Oaths Taken Outside the State

29. Generally

The words "the state" as used in CPA § 359 referred to the state of New York. Turtle v Turtle (1898) 31 App Div 49, 52 NYS 857.

There had to be a substantial compliance with the requirement of CPA § 359, and the certificate had to state facts from which the legal inference of authority to administer the oath would flow; it also had to state that the certifying officer was acquainted with the handwriting of the officer taking the affidavit. Brown v Stilwell, 1 NYSR 132.

The word "state" in CPA § 359 referred in each instance to the state of New York and not to the state in which the oath was taken, and such oath could have been taken by any person authorized by the laws of this state to take and certify the acknowledgment of deeds to be recorded in this state, even though he was not authorized to take the acknowledgment of deeds to be recorded in the state where he resided. Ross v Wigg (1884, NY) 34 Hun 192.

CPA § 359 applied to foreign countries. Ross v Wigg (1884, NY) 34 Hun 192.

Affidavit of service of order that administrator show cause why he should not be punished for contempt served in another state, taken before a judge of probate of such state. Held, invalid. Loop v Northup (1891) 59 Hun 75, 13 NYS 144.

30. Authentication of oath of service outside state or county

Certificate of service of summons personally without the state held not fatally defective, although stating the service was made upon the defendant "Brennan" where it was affirmatively shown that service was in fact made upon defendant Brenham, it not appearing that any person by the name of Brennan was a party to the action or had any connection with it. Miller v Brenham (1877) 68 NY 83.

Where divorced husband, by order to show cause based on affidavit executed in Florida, but not authenticated, moved in New York to reduce alimony, lack of authenticating certificate was irregularity correctable nunc pro tunc. Raynor v Raynor (1951) 279 App Div 671, 108 NYS2d 20.

Affidavit of service of summons without the state on foreign corporation held properly authenticated by the certificate of the proper official, showing that the person before whom the affidavit was sworn to was qualified to act at the time of administering the oath. McCoy v Erie Forge & Steel Co. (1922) 118 Misc 851, 194 NYS 695, affd (1922) 201 App Div 570, 194 NYS 696, affd (1922) 234 NY 545, 138 NE 440.

Proof of service defective in that it did not contain certificate of proper official showing that person before whom the affidavit was sworn to in sister state was qualified to act at the time of administering the oath may be cured by appropriate motion pursuant to CPA § 105 (§§ 2001, 3025b, Rule 305(c), 2101(f) herein). Gordon v Gordon (1959) 17 Misc 2d 734, 187 NYS2d 442.

Affidavit sworn to without the state, without certificate that officer taking it is authorized to take acknowledgments, etc., is not sufficient. Phelps v Phelps (1884, NY) 32 Hun 642.

31. Consular officer

Acknowledgment of service of summons in Paris, taken before U. S. vice-consul under seal of his office was sufficient without certificate of authentication. Sperry v Fliegers (1949) 194 Misc 438, 86 NYS2d 830.

32. --Notary public

When the verification of a petition for the examination of a party before trial is taken before a notary of another state, the official character and signature of the notary must be certified as required in the case of an acknowledgment to entitle a deed to record. Miller v Nevins (1906) 115 App Div 139, 100 NYS 703.

Under CPA § 359 and § 240 of Real Property Law, chap 547 of 1896, an affidavit executed before a notary public of another state, could be used in this state where the clerk of the proper county of the foreign state certified that the notary public was duly authorized to take such affidavit. Levy v Levy (1899) 29 Misc 374, 60 NYS 485.

Certificate of court clerk of court of record that person before whom affidavit was made was notary public, duly authorized by law to administer oaths, was sufficient. Cohen v Cohen (1948) 193 Misc 1023, 86 NYS2d 168.

Complaint in bastardy proceeding, verified before an Illinois notary public, could not be used as basis for issuance of warrant against defendant where it lacked certificate of authentication. Schon v Ortner (1960) 21 Misc 2d 612, 196 NYS2d 1008.

Certificate of notice was fatally defective where it failed to show that the notary was authorized to take and certify the acknowledgment and proof of deeds. Leavitt v Williams (1914, Sup App T) 150 NYS 667.

33. --Sheriff

Court acquired jurisdiction of foreclosure action notwithstanding affidavit of deputy sheriff who personally served summons without the state was deficient in that it lacked the certificate of the secretary of state wherein service was had, showing the notary's power to act, where amended affidavit supplying the omitted certificate was subsequently filed nunc pro tunc. Kelly v Schramm (1921) 197 App Div 377, 189 NYS 629.

A certificate of a sheriff who makes service out of his own county is of no avail. The proof should be by affidavit. Farmers' Loan & Trust Co. v Dickson, 17 How Pr 477, 9 Abb Pr 61.

So in case of service by a sheriff in another state. Thurston v King, 1 Abb Pr 126; Morrell v Kimball, 4 Abb Pr 352.

Forms:

Form 1 -- County Clerk's Certificate of Authentication of Affidavit Taken in a Foreign State

Form 2 -- Certificate of Authentication by Clerk of Court of Affidavit Taken Without the State

Form 3 -- Certification of Translation of Oath or Affidavit in Foreign Language, and of Designation of Translator

Form 4 -- Oath of Witness

Form 5 -- Oath of Interpreter

Form 6 -- Oath Administered Without Gospels

Form 1

County Clerk's Certificate of Authentication of Affidavit Taken in a Foreign State

State of -1---

County of -2--- ss.

I, -3---, clerk of -4--- County, in the State of -5--- do hereby certify that -6---, who took the annexed affidavit, was at the time of taking the same, a notary public in and for -7--- County, residing in said county and duly authorized by the laws of said State to take acknowledgment or proof of deeds to be recorded therein; that I am acquainted with the handwriting of the said -8---, and that I verily believe that the signature to the original certificate is genuine. [If not acquainted with such handwriting, the authenticating officer should state that he has compared the signature to the original certificate, with that deposited in his office by such person.]

In Witness Whereof, I have hereunto set my hand and official seal this -9- day of -10---, 20-11-.

[Signature of clerk]

[Print signer's name below signature]

[Seal]

Form 2

Certificate of Authentication by Clerk of Court of Affidavit Taken Without the State

State of -1---

City of -2--- ss.

County of -3---

I, -4---, clerk of the -5--- in the State of -6---, and clerk of the -7--- court, the same being a court of record in or of the aforesaid County [City or Parish], having by law a seal, do hereby certify that -8---, by whom the foregoing affidavit was taken, and whose name is subscribed thereto, was at the time of taking the same a -9---, duly commissioned and sworn and authorized by the laws of said State to take the acknowledgment and proof of deeds to be recorded therein, and that I am well acquainted with his handwriting, and verily believe that the signature to the foregoing certificate is genuine. [If not acquainted with such handwriting, the authenticating officer should state that he has compared the signature to the original certificate, with that deposited in his office by such person.]

In Witness Whereof, I have hereunto set my hand and affixed my official seal this -10- day of -11---, 20-12-.

[Signature of clerk]

[Print signer's name below signature]

[Official seal of clerk of court]

Form 3

Certification of Translation of Oath or Affidavit in Foreign Language, and of Designation of Translator

[The following is to be attached to the oath or affidavit and the certification thereof in the foreign language and the translation thereof.]

State of New York

County of -1---

-2---, being duly sworn, deposes and says:

1. I was designated by Hon. -3--- [Justice of the Supreme Court of the State of New York, or of the County Court, County of -4---, or Surrogate of the Surrogate's Court -5--- County] to make the foregoing translation in the English language of the affidavit, and the certification thereof hereto annexed.

2. I hereby certify that the foregoing translation is a true and accurate English translation of said affidavit hereto annexed in the [Italian] language, and of the whole thereof together with the certification thereof.

-6---------

[Print signer's name below signature]

[Deponent]

Sworn to before me this -7-

day of -8---, 20-9-.

-10--- Justice [of the Supreme Court or County Court or Surrogate of Surrogate's Court.]

State of New York

County of -11---

I -12---, a Justice of the Supreme Court of the State of New York [or other judicial officer who made the designation], do hereby certify that I designated -13---, who is named in and who made the foregoing certificate annexed to the translation of the annexed affidavit and the certification thereof made in the [Italian] language, to make such translation, and that said certificate was signed, acknowledged and certified under oath by said -14---, before me.

IN WITNESS WHEREOF I have hereunto set my hand and the seal of said [Supreme, or County or Surrogate's] Court this -15- of -16---, 20-17-.

-18---------

[Print signer's name below signature]

[Judicial officer]

[Seal]

Form 4

Oath of Witness

You do solemnly swear to testify the truth, the whole truth and nothing but the truth, as to the matters respecting which you are to be examined, so help you God. [I do.]

Form 5

Oath of Interpreter

You do solemnly swear that you will truly and faithfully interpret the oath and interrogatories to be administered to -1---, a witness now to be examined, out of the English language into the -2--- language, and that you will truly and faithfully interpret the answers of the said -3---, thereto out of the -4--- language into the English language, so help you God. [I do.]

Form 6

Oath Administered Without Gospels

You do swear, in the presence of the ever-living God, to testify the truth, the whole truth and nothing but the truth, as to the matters respecting which you are to be examined, so help you God. [I do.]

Friday, May 3, 2013

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