Bogensky v. Rosenberg , 202 Misc. 652 ( 1952 )

Ritchie, J.

Motion by defendant to dismiss plaintiff’s complaint on the ground that it fails to state a cause of action.

The complaint alleges that the plaintiff sustained damages by reason of the misconduct of the defendant, in his office as a notary public, in certifying to the acknowledgment of a deed containing a covenant against encumbrances when, it is alleged in the complaint, such premises were encumbered to the knowledge of the defendant.

The action is brought under the provisions of section 135 of the Executive Law which specifically sets forth the powers and duties of notaries public which are, among other things, “ to receive and certify acknowledgments or proof of deeds ”. The section thereafter provides “ For any misconduct by a notary public in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them.”

The complaint fails to set forth any misconduct by the defendant in the performance of Ms powers as a notary public in certifying to the acknowledgment of the deed described in the complaint. Accordingly, the motion is granted.