Summary
finding that date discrepancy "does not show that subscribing witness did not sign `at the same time' as he witnessed the execution, and that the acknowledgment is affirmative proof that he did"
Summary of this case from In re 189-30 Realty Corp.Opinion
April, 1908.
Middleton S. Borland, for respondents.
Jacob Fromme, for appellant.
The plaintiffs are lawyers and bring this action to recover $161.50 for legal services and disbursements, rendered in January, 1907, to the defendant in searching the title to the premises Nos. 617-619-621 West One Hundred and Thirtieth street, borough of Manhattan, city of New York. The only question raised by this appeal which requires discussion is whether the title to the premises in question was so defective as to justify the plaintiffs in refusing it. The alleged defect in the title consists in the fact that the deed of the property to the defendant was dated the 26th day of June, 1900, and the subscribing witness put the date "June 27th, 1900," under his name. The acknowledgment to the deed is by the subscribing witness who swears, in his acknowledgment, that "said subscribing witness was present and saw her (grantor) execute the same; and that he, said witness, thereupon subscribed his name as witness thereto." The revenue stamps, upon the deed, were canceled June 26, 1900, and the deed was recorded September 9, 1901.
The respondents claim that the discrepancy between the date of the deed and the date under the signature of the subscribing witness justified the rejection of the title by them. This contention seems to be based upon section 242 of the Real Property Law, which requires that proof by a subscribing witness can be made only by some person other than a party to the instrument, who was a witness of its execution and at the same time subscribed his name to the conveyance as a witness. The discrepancy as to date does not show that the subscribing witness did not sign "at the same time" that he witnessed its execution; and the acknowledgment is affirmative proof that he did.
We think that there was no defect in the title shown to exist and that the plaintiffs were not justified in rejecting it.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
Present, GILDERSLEEVE, SEABURY and DAYTON, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.