(dissenting):
The affidavit of Pousette was verified before a judge of a county court of the Province of Ontario, which court has a seal. The clerk of the court 'certified, under seal, that the person before whom the affidavit was taken was at the time a judge of the court, .and that the signature was genuine, but fails to certify that the judge was authorized by the laws of the Province to take and certify the acknowledgment and proof of deeds to be recorded in that Province.
*203Section 25 (2 R. S., 396), authorizing affidavits to be taken in foreign countries before a judge of a court having a seal, was repealed by chapter 417, Laws 1877. Affidavits in foreign countries may now be taken before commissioners appointed pursuant to chapter 136, Laws of 1875 (3 R. S., [7th ed.], 2230), or before the officers authorized by the fifth and sixth sections of chapter 3, part 2 of the Revised Statutes,' to take the proof and acknowledgments of deeds conveying real estate, and also by any consul or vice-consul or minister resident of the United States appointed to reside at any foreign port or place. . (Chap. 206, Laws 1854.)
It is assumed by the counsel for the respective parties that the word “ State,” in section 844 of the Code of Civil Procedure, embraces foreign countries, and that the section is applicable to affidavits taken without the United States, which I greatly doubt. Rut conceding the correctness of the assumption for the purposes of this case, I think the affidavit is not properly certified. An affidavit, verified before an officer of another State, cannot be used in an action or special proceeding in this State (except where it is otherwise specially prescribed by law) unless the officer before whom tlie affidavit is verified is authorized by the law of liis State to take and Certify the acknowledgment and proof of deeds to be recorded in his State; and -the official character of the officer, the genuineness of the signature, and that lie is authorized to take and certify the acknowledgment" and proof of deeds to be recorded in liis State, must be certified under the name and official seal of the clerk, register, recorder, or a prqthonotary of the county in which such officer resides, or by the clerk of any court thereof having a seal. (Code Civil Pro., § 844, chap. 195, Laws 1848, as amended •by chap. 557, Laws 1867, 3 R. S. [7th ed.], 2224.) This section of the Code evidently has reference to the statute cited, and they must be read and construed together. Chapter 208, Laws of 1870, authorizes the officer before whom the questioned affidavit was taken to fake the acknowledgment of deeds to be recorded in this State. The argument is that, by the section of the Code above cited, the ■authority to take affidavits to be used in the courts of this State is •vested in and limited to such officials of other States as are by the •statutes of this State authorized to take acknowledgments by virtue *204of holding certain designated offices in other States. I think the intention was to vest the power of taking affidavits in all officers of other States authorized by the laws of the State of their residence, to take and certify the acknowledgment and proof of deeds to be recorded in the State of the officer’s residence, and that the section does not authorize officials of other States to take affidavits to be read in the courts of this State, unless they are authorized by the law of the State of their residence to take acknowledgments of deeds to be recorded in the State of their residence, except in cases specially authorized by statute.
The clerk of a county, or of a court of another State, could not have official knowledge that a particular officer within his jurisdiction was authorized by the laws of this State to take the acknowledgment of deeds and could not make the required certificate. Some light may be thrown on this section and the reason for it, by briefly considering the course of legislation on the subject of acknowledgments taken in other States and territories.
Authority to take acknowledgments has from time to time been conferred by the statutes of this State upon designated officials of other States and territories. But is was found that officers accustomed to the discharge of such duties were designated by different official titles in the various States and territories, and it was inconvenient to designate appropriate officials in all the States and territories by their official titles. To avoid this difficulty, and to enlarge the number of officials who should possess this authority, chapter 195, Laws 1848, was passed (and amended by chap. 557 Laws 1867), vesting the power to take acknowledgments of instruments to be recorded and read in evidence in this State, in any officer of any other State or territory authorized, by the laws thereof to take the proof and acknowledgment of deeds. It was the intention of the legislature not to restrict, but to enlarge the class of officials of other States authorized to take and certify affidavits to be used in this State. The affidavit of Pousette, verified March 4, 1884, is not certified as required by the section of the Code above cited, and cannot be considered on this appeal.
This construction of section 844 is in accordance with Phelps v. Phelps (6 N. Y. Civ. Pro. Rep., 117; affirmed, 32 Hun, 642); Williams v. Waddell (5 N. Y. Civ. Pro. Rep., 191); Harris v. *205Durkee (Id., 376.) Excluding the affidavit of Pousette the evidence is insufficient to sustain the order of arrest and attachment. The order of the Special Term denying the motion to vacate the order of arrest and set aside the warrant of attachment should be reversed, with costs.
Order affirmed, with ten dollars costs and disbursements.