(dissenting). I would affirm the judgment of the Appellate Division substantially for the reasons set forth in its per curiam opinion. 91 N. J. Super. 13 (App. *397Div. 1966). We should not lose sight of the fact that summary judgment was entered in favor of the bank on the pleadings and a deposition of its assistant cashier-notary public. Appellate courts have always been reluctant to grant such motions unless it appears beyond doubt that no possible factual issue appears or may be made to appear if a fair and adequate record is allowed to be presented.
The Appellate Division held that a factual question existed for jury determination as to whether the notary public-assistant cashier was acting in both capacities, public and as agent of the bank, when he executed the false acknowledgment. I agree with that determination but in addition I believe the summary judgment was granted on an inadequate record. In pretrial discovery proceedings, plaintiff took the assistant cashier’s deposition. When completed, defendant moved for summary judgment on the basis of his testimony. But the deposition shows that whenever plaintiff’s attorney undertook to question him about the knowledge of and participation in his activities as a notary public by other officials of the bank in the course of bank business, the bank’s attorney objected and directed the witness not to answer. The witness then said “I decline to answer.” The direction was improper, and in fairness to plaintiff, we should not deprive it of a plenary trial on the basis of such a deposition. Since so much of the evidence to support plaintiff’s cause of action is necessarily in the hands of the bank, and since enough appears in the deposition to at least raise some question of an agency relationship between the bank and the notary, plaintiff ought to be allowed to go to trial. In this kind of a situation, plaintiff should be permitted to rely for its case on what it can draw out of the defendant. See Mayflower Industries v. Thor Corp., 15 N. J. Super. 139, 156 (Ch. Div. 1951), aff’d o. b. 9 N. J. 605 (1952).
Begardless of the limited record, in my judgment there is ample evidence to require denial of a summary judgment for the defendant. The assistant cashier Kuiphoff is a full-*398time employee of the bank and has been since 1941. Pox-eight years before the incident in question he had been a notary and had pursued his activities in that connection in the bank, during banking hours, and for the accommodation of bank depositors and customers. It is clear that he did so primarily to serve the bank’s interest, not his own. Moreover it is inferable that he did this over the years with the knowledge of and at the authox-ization of the bank as a service for its depositors and customers.
Under the law a certificate of acknowledgment is an act which must in the nature of things be relied on with confidence by men of business. The duty of a notary public in certifying an acknowledgment is not limited to the one to whom he directly renders service. “His duty is to the public and to those who may be affected by his act. The public has the right to rely upon the verity of a certificate, and if one sustains injury as the proxixxxate [result] of a willful violation of [the notary’s] official duty with respect to that certificate” he should be held liable to that person. When a notary by willful misconduct “starts on its way in the commercial world a false certificate upon which the public has the right to rely, he ought to be held responsible for all proximate consequences, not only to the person who takes immediately and directly under the instrument bearing the certificate, but to everyone damaged as the proximate result of it.” See American Surety Co. of New York v. Boden, 243 Ky. 805, 50 S. W. 2d 10 (Ct. App. 1932); Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7 (Sup. Ct. 1966). The bank is charged with knowledge of this state of the law.
When to serve its own interest the bank authorized its employee-notary to issue certificates of acknowledgment at the request of and as a service to its depositors, it empowered him to issue an instrumentality which it knew ox-should know the receiving customer intended to deliver to a third person. The bank kixew the notary’s certificate affixed to the document a representation of verity which would *399accompany it into the channels of business, on which a member of the public could rely in entering into the transaction the instrument was designed to accomplish. When the plaintiff here received the indemnity agreement in question, there was no obligation to check the signatures. The presence of a notary’s certificate justified belief that the document was bona -fide. The false representation of verity or genuineness was made possible by the bank and a jury could find justifiably that it was made at least partly in the bank’s interest, because the notary was acting within the scope of his employment in serving a customer of the bank.
Eor these reasons I would affirm the Appellate Division and remand the case for plenary trial and full development of the relevant facts.
For reversal—Chief Justice Weinteaub and Justices Jacobs, Hall, Schetthsto and Hakemajst—5.
For affirmance—Justice Ebancis—1.