Hollohan v. Rempe (141 A.D. 71, 1910)

Thomas, J.:

On May 25,1900, Frank B. Smith executed and acknowledgéd a deed of land, and Mary B. Smith, his wife,-apparently signed the same,-and acknowledged it before Gr. Winslow Powell, a notary public, Mo. 105, Kings county, M. Y. Smith’s name was Frank Buclmowski, and his wife’s name was Mary.- . This, action is brought by her daughter Hollohari, as her committee, to' set aside the deed so far as it affects her, upon the ground that she did not sign it. ' In May, •1900, Smith did not live with his wife, but did'live in Brooklyn with a woman named Mary Enut, who passed as his wife.-' The deed was. not produced. Its production would have availed little, as the wife-was an incompetent, and the husband and Enut were not present, . ■ and had. they been, would not have admitted forgery of .the name. The fact, that at the time of the execution, of .the- deed the wife was not, and Enut, as wife, was living with Smith, strongly indicates that the latter executed .the deed personating the wife. Where was the wife %. Since May, 1903, she has been living with . the plaintiff. May 21, 1900, the daughter Hollohan was nineteen or twenty years old. ' When she was five years, or some fourteen years before, that is, in 1886, she visited her mother in' án insané - asylum in Middletown. She saw her in an asylum in December, 1902, and.prior tó' bringing her .home in May, 1903, she testified that her mother “ was bulfétted ábont in different asylums.” Mary Kulaszewicz saw the wife, in an asylum at.Middletown “ twenty-four years ago” from .1909, or in 1885'. Powell, the notary public, could not recall any of. the “ circumstances in regard to the acknowledgment of that deed.” He had no recollection of the person who ..made it but referring to the' incompetent he. testified,- “ 1 can "say it was not this-lady.” If the fact, that the wife was in an asylum in 1895, 1896, 1902 and 1903 does not prove that she was there in May, 1900, yet when it is joined to the facts that at the time of the execution' of the deed and'at a previous period continuing through several years Smith did not'' live with her, but with Enut, and held the latter out as his wife,, and * that the "notary testified that the incompetent was not the person who acknowledged, the probative force of the notarial certificate is rebutted. Although the notary had no memory of the transaction or the' per-son acknowledging, he could without inconsistency state whether the incompetent was such person. One may not affirmatively recall a person who did an act in his presence, and yet know whether he has ever seen a particular person called to his attention. Hot to recall face and form of a person once seen does not preclude knowledge that a present person has never been seen. The security of titles is important, but this incompetent’s interest.is equally valuable. It is no higher justice to protect purchasers than those having present property rights against the loss of them by forgery.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Hirsohberg, P. J., Woodward, Burr and Rich, JJ., concurred.-

Judgment'reversed and new trial granted, costs to abide the final award of costs.