John G. Smith, Appellant, against Thomas Boyd et al., Respondents

John G. Smith, Appellant, against Thomas Boyd et al., Respondents. (Decided January 21st, 1884.) The certificate of acknowledgment of an assignment for benefit of creditors, after stating the venue and date, was in the following words: “before me personally appeared O. H. S. and J. Gr. S.” [the assignor and assignee], “ of the City of New York, to me personally known to be the individuals described and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned.” Held, that this did not set forth that the officer knew the persons acknowledging to be the persons described in and who executed the conveyance; that the instrument, therefore, was not entitled to be recorded, and passed no title to the assignee; and that the irregularity could not he cured, so as to give the assignee title or right to the assigned property, as against attaching creditors of the assignor. Appeal from a judgment of this court entered upon a dismissal of a complaint on a trial before a referee. The action was brought to recover damages for the wrongful taking by the defendants of personal property claimed by the plaintiff as assignee under a general assignment for the benefit of creditors. To the assignment, which was made to the plaintiff by Clinton II. Smith, was annexed a certificate of acknowledgment in these words : “State of New York, City and County of New York, ss.: “ On this twenty-first day of February, one thousand eight hundred and eighty-two, before me personally appeared Clinton II. Smith and John G. Smith, to me personally known to be the individuals described and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned. “ Joira N. Brows, “ Commissioner of Deeds, N. Y. County.” The assignment was filed in the office of the clerk of the City and County of New York; and subsequently warrants of attachment were obtained by the defendants against the assignor and levied upon a portion of the assigned estate, which was the alleged wrongful taking for which the action was brought. On the trial before the referee the plaintiff offered the assignment in evidence. The defendant objected to its admission, on the ground that it was not duly executed and acknowledged. It -was admitted that the instrument was signed by the parties to it; that the plaintiff took possession of the property mentioned in the schedule annexed to it; that the defendants took the property referred to in the complaint out of plaintiff’s possession by virtue of attachments. The referee allowed the assignment in evidence, reserving the question as to the legal effect of the paper until the close of plaintiff’s case. The plaintiff rested, and the defendant moved to dismiss the complaint on the ground that the assignment was not duly acknowledged or executed as required by the statute. The motion was granted, and judgment for the defendants was entered on the dismissal of the complaint. From the judgment the plaintiff appealed. John J. Adams, for appellant. Otto Horwitz and Daniel Clark Briggs, for respondents. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. An assignment for the benefit of creditors is not valid if not duly acknowledged and recorded (L. 1877, c. 466, § 1; Rennie v. Bean, 24 Hun, 123; Hardmann v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 N.Y. 51; Jones v. Bach, 48 Barb. 568; Treadwell v. Sackett, 50 Barb. 440). If it be not duly acknowledged the recording goes for nothing; it is not recorded (Rennie v. Bean, supra ; 2 R. S. 759, §§ 16,20). In determining the validity of the recording of a conveyance, it is the certificate of the officer who takes the acknowledgment that must be considered, for unless the acknowledgment be certified in the manner prescribed by the statute the instrument is not entitled to be recorded (2 R. S. 759, § 16). The manner of certifying an acknowledgment is for the officer who takes it to indorse upon the conveyance a certificate of the acknowledgment, wherein he shall set forth the matters required by the statute to bo done, known or proved on such acknowledgment, &c. (2 R. S. 759, § 15). The officer must know or have satisfactory evidence that the person making the acknowledgment is the individual described in and who executed such conveyance (2 R. S. 758, § 9). According to the 15th section of the statute, such knowledge shall be set forth in the certificate. In the certificate of acknowledgment to the assignment before us, it is not set forth that the officer knew the persons acknowledging to be the persons described in and who executed the conveyance. The words “ the same ” relate to nothing and identify nothing. There is an utter absence of certification by the officer of matters required to be certified. It may be a clerical error merely, but the matters are not in the certificate, and without them the certificate is not in the manner required by the statute, and the conveyance was not entitled to be recorded. I have referred to the foregoing provisions of the Revised Statutes as applicable to the acknowledgment and recording of insolvent assignments for this reason : the Assignment Act (L. 1877, above cited) requires that the assignment shall be duly acknowledged before an officer authorized to take the acknowledgment of deeds, and recorded in the office of the clerk of the county where the debtor resided or carried on business at the date thereof. The act does not state the requisites of an acknowledgment nor of a certificate thereof. The Assignment Act of 1860 provided that the certificate of acknowledgment should be indorsed upon the assignment, but this provision is omitted in the act of 1877. The omission was probably owing to the fact that the Revised Statutes are explicit as to how acknowledgments shall be taken and certified. The act of 1877 merely requires that the assignment shall be duly acknowledged. “ Duly ” signifies regularly, or exactly (People v. Walker, 23 Barb. 301), that is to say, in conformity with some regulation on the subject; and as the only rule in the matter is found in the Revised Statutes, the acknowledgment and certificate must conform to them. Under the act of 1860 it was held that the assignment was invalid if not acknowledged before delivery. Under the act of 1877 no time is fixed for acknowledgment, but it must be before recording, for the reasons above stated ; and under the authorities above cited, if the instrument be not acknowledged and recorded, it is invalid and passes no title to the assignee. The irregularity in the certificate of acknowledgment cannot be now cured so as to give the assignee title or right over the attaching creditors, the defendants. He gets no title until the assignment is recorded. If no rights intervene he might obtain a proper certificate and have the assignment recorded properly, but bis title to the assigned property would vest only from that time. The referee was right in giving judgment for defendants, and it must be affirmed with costs. Van Brunt and Van Hoesen, JJ., concurred. Judgment affirmed, with costs.