Ross v. New Amsterdam Casualty Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants entered upon an order sustaining a demurrer to the plaintiff’s second amended complaint without leave to amend. The action is one in form to recover damages against the defendant Mark Lane as a notary public and against the defendant New Amsterdam Casualty Company, a corporation, as the surety upon his official bond, in the sum of $650 alleged to have been sustained through the official misconduct and negligence of said defendant Mark

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Lane as a notary public in the course of the following transaction as set forth in the plaintiff’s second amended complaint substantially as follows: On or about November 6, 1919, the plaintiff paid to one Gladys Steele the sum of $650 as the purchase price of an automobile represented by said Gladys Steele to belong to her and to have been purchased by her from one John Reed; and the said Gladys Steele, as an inducement to the plaintiff to buy said automobile, presented to plaintiff a bill of sale which she represented she had received from said John Reed, which bill of sale was in the usual form of such documents, but which had attached to it a certificate of acknowledgment in the statutory form of such certificates executed by said Mark Lane as a notary public and certifying that John Reed, known to him to be the person described in and whose name was subscribed to the annexed instrument, had appeared before him as such notary public and acknowledged that he executed the said instrument. The plaintiff alleges that he relied upon said bill of sale and particularly upon said acknowledgment and paid over to said Gladys Steele said sum as the purchase price of said automobile, whereas in truth and fact said John Reed was a fictitious person who never had appeared before said notary public nor acknowledged the execution of said instrument and that the said certificate of acknowledgment and of said notary public attached to said bill of sale was false, fraudulent, and untrue, and was made and executed by the defendant Mark Lane so that said Gladys Steele could represent that she was the owner of said automobile and had purchased same from said John Reed; that said automobile was in fact stolen property and belonged to one Rodgers, who subsequently reclaimed it through the police department from the said plaintiff, to his damage and loss in the sum of $650, which he now seeks to recover from Mark Lane or said surety upon his official bond.