Bossie v. Edelson

The plaintiff, a legatee under a will to which the defendant was a witness, seeks to recover a penalty of fifty dollars for alleged failure of defendant to write opposite his name his “ place of residence ” as required by section 22 of the Decedent Estate Law. The defendant is a notary, and after he signed his name he stamped upon the will a seal and an impression both containing the words “ ¡Notary Public, ¡New York County.” It is true that these words are stamped on the edge of the paper so that the impression of the words “ ¡New York County ” is not quite complete, but the impression is quite sufficient to be intelligible. It seems to'me that these words constitute a sufficient compliance with, the statute. The plaintiff does not deny that they were-sufficient to permit him to find the defendant without difficulty when he desired his testimony. The county of ¡New York is a political division entirely embraced within the city .of ¡New York and is narrower than "a designation of the city of ¡New York as a place' of residence. Unless, therefore, we are prepared to hold that the statute requires the witness to add his street number in large cities it sufficiently describes his place of residence. If this statute were a remedial statute it might be so construed as to require a street number in cities of great size, but it is a strictly penal statute enacted prior to the year 1830 at a time when there were no large cities within the state. Moreover, it is somewhat significant of the legislative intent that in a recent statute (chapter 227 of the Laws of 1910, section 333 of the ¡Real Property Law). the legislature has used the following language: “After September thirtieth, nineteen hundred and ten, a recording officer shall not record or accept for record any conveyance of real property, unless the residence of the purchaser and, if in a city of over five hundred thousand inhabitants according to the last federal census, the street number of the residence of the purchaser shall be • stated therein, and such residence and street number shall be recorded with the conveyance * * * .” It seems to me that by this language the legislature has implied that the word “ residence ” standing alone in a statute does not require the addition of a street number. Certainly if the lan*236guage of the early penal statute is not entirely clear, its meaning should not he enlarged beyond its strict construction.

The appellant also argues that the statute is unconstitutional. Certainly there are both strong reason in and high judicial authority for- his view (see dissenting opinion of O’Brien, J., in Dodge v. Cornelius, 168 N. Y. 242); but since in my opinion the statute has not been violated we should not pass upon its constitutional ity. .

Order setting aáide the judgment should be reversed, with costs to appellant, and judgment reinstated.

G-uy and Bijub, JJ., concur.

Order reversed, with costs to appellant, and judgment reinstated.