The office of notary seems as old as Roman notes of legal proceedings. Notaries were early employed in drawing up deeds, contracts and other documents. (Brooke “ The Office and Practice of a Notary in England,” p. 3.) A notary public in England may prepare deeds, agreements, wills and codicils, relating to real and personal property in England, also deeds and other documents to take effect in British dominions beyond the seas and in foreign countries, to conform to the law of the place where such deed is to operate; also to verify, authenticate and attest by his official seal the execution of deeds or other documents, contracts and powers of attorney; to prepare charter parties, bottomry bonds and average agreements and other mercantile documents. (Halsbury’s Laws of England, vol. 21, § 817; King v. Scriveners’ Co., 10 B. & C. 511, 519.) On the Continent a notary public may not only prepare mercantile papers, but also contracts and conveyances. His notarial copies prove themselves in contested proceedings. (Goirand French Commercial Law, 9, 10, 19; Todd Belgian Law with Codes of Commerce & Procedure, 11.) A notarial will is where the testator’s intentions are written down by the notary, and then signed by the testator in the presence of the notary and witnesses. (French Civil Code, arts. 971-974.) In the State of New York his powers are not defined. Besides his duties as to commercial paper is a general reference to his recognized international powers. The statute gives authority “ to exercise such powers and duties as by the law of nations and according to commercial usage, or by the laws of any other government, State or country, may be performed by notaries.” (Executive Law [Consol. Laws, chap. 18; Laws of 1909, chap. 23], § 105, subd. 1, as amd. by Laws of 1911, chap. 668.)
The general provisions of the Penal Law cannot be fairly construed to punish a notary public for preparing an instrument like a bill of sale, will or mortgage. Prior causes in *471this department have had to do with corporations engaging in legal affairs and amenable to Penal Law, section 280. Here the defending notary has been drawing up for pay ordinary conveyances, mortgages, bills of sale, and even wills, for charges similar in amount to those customary by notaries.
Section 270 of the Penal Law comes from older statutes that are intended to protect the bar. It refers primarily to appearing in courts of record, and to such appearance in courts not of record in New York city. Practicing in a Justice’s Court (outside of the city of New York) is not thereby forbidden.
The statute prohibits: 1. Making a business to solicit employment for a lawyer. 2. Making a business to furnish attorneys or counsel to render legal services. 3. Holding one’s self out to the public as being entitled to practice law, as aforesaid. 4. In any manner to assume to be an attorney or counselor at law, or equivalent terms in any language, to convey the impression that he is a legal practitioner. 5. Advertising that he conducts a law office, or office of any kind for the practice of law.
The enumerated expressions used are subject to the rule of efusdem generis, and relate to practices connected with court or legal proceedings. Alfani’s acts are those of a notary public, or a conveyancer.
The office of commissioner of deeds in New York city is not conferred on applicants without the special qualification shown by a legal clerkship, or other affidavit or certificate of competency. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 58, as amd. by Laws of 1917, chap. 610.) If the public need protection against unprofessional conveyancers or notaries, the Legislature can readily set up a standard of like qualifications for notaries. Here is the real direction for a reform, rather than along the line that such notaries when drawing papers are engaged in the “ practice of law.”
I recommend to reverse this conviction, and to discharge the defendant.
Jenks, P. J., Mills and Kelly, JJ., concurred; Jay cox, J., dissented.
Judgment of conviction of the Court of Special Sessions reversed, and defendant discharged.