§ 2309.Oaths and affirmations

The first sentence of subd (a) is based upon § 12 of the Gen. Const. Law, which deals with oaths on affidavits. The persons named in former CPA §§ 357, 359 as empowered to take oaths were, for the most part, the same as those specified in §§ 298–301 and 313-a of the Real Property Law. The only discrepancies are that city magistrates were named in § 357 of the CPA and are not included in § 298 of the Real Propery Law; that recorders are mentioned in § 298 of the Real Property Law but not in the former CPA; and that, while persons enlisted or commissioned in the armed forces might have administered oaths under CPA § 359, only officers in the armed forces can take acknowledgments under § 300 of the Real Property Law. City magistrates obtain the power they need under the second sentence of this subdivision, discussed below. For the sake of uniformity, and in accordance with the provisions of the General Construction Law, the list of persons in the Real Property Law has been followed. See the similar provisions of rule 3113(a) 2 and 3 dealing with persons before whom a deposition may be taken outside the state. The omission of the provision of the second sentence of former CPA § 359 regarding military affidavits effects no change in former law since the provision also appears in § 300 of the Real Property Law, and is thus included in the reference made by this subdivision. This subdivision is not exclusive. The many specific grants of power to administer oaths contained in the substantive laws of the state are unaffected by it. Some statutory provisions limit the class of persons who may administer a particular oath. This subdivision does not affect these statutes in view of the phrase “unless otherwise provided.” The second sentence of this subdivision is derived from the first sentence of former CPA § 358 without change in substance. An official’s authority to administer oaths under this sentence is parallel to his power to issue subpoenas pursuant to § 2302. Former CPA § 358 was taken verbatim from § 843 of the Code of Civil Procedure, which was derived, without change, from § 843 of chapter 416 of the laws of 1877. Prior to that, the revised statutes provided that “[w]henever applications shall be made to the commissioners of the landoffice, the canal board, canal commissioners, or any of them, or to any other public officer, to do any act in an official capacity, and such board or officer shall require information or proof, to enable them or him to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit and any member of such board, or such officer, may administer all necessary oaths for that purpose.” 3 NY Rev Stat c 8, tit 17, § 11 (1st ed 1829). While this provision was essentially embodied in the first sentence of CPA § 358, the derivation and meaning of the last sentence of such former section was not entirely clear. It appeared to authorize an official to use affidavits. If it was read to authorize the official to administer the oath on affidavits he might have received, it added little to the first sentence; and if read literally it had no relevance to oaths, but embodied a general rule as to the form of proof before administrative agencies. This sentence was omitted from this subdivision with no intention to deprive officials of power to utilize affidavits as proof in performing their duties. See 1 Benjamin, Administrative Adjudication in New York 181–194 (1942); Richardson, Evidence § 213 (8th ed, Prince 1955). The exceptions stated in the third sentence are similar to those in CPA § 357; § 357 also excluded oaths administered to witnesses at a trial but such oaths have been integrated into this subdivision. A body or court may limit the class, or specify the person, who may administer oaths before it as part of its power to control its proceedings, so long as the person or class is authorized to give the oath under this subdivision or any other provision of law.

Subd (b) of this section was based on Arizona law. Ariz Rev Stat Ann § 12-2221 (1956). Similar provisions are to be found in other jurisdictions. See Ind Ann Stat § 2-1711 (1946); Mo Ann Stat § 492.040 (1952); Tex Rev Civ Stat art 25 (1947). It has long been the practice to vary the forms and mode of administration of the oath to conform to the beliefs of the person taking it. See Tyler, Oaths; Their Origin, Nature, and History 89–96 (1934); 6 Wigmore, Evidence §§ 1816– 1820 (3d ed 1940). This was recognized in CPA §§ 360–364. Thus, while a usual form of oath is said to have crystallized through tradition (see Bookman v City of New York, 200 NY 53, 93 NE 190 (1910)), the general requirements rather than particular forms or modes of administration of the oath have been set forth in this subdivision. The common denominator of the oaths and affirmations formerly described in the CPA was a solemn ceremony; the case law requires an unequivocal act of assent to tell the truth. See O’Reilly v People, 86 NY 154 (1881); Bookman v City of New York, supra; N. Y. Att’y-Gen., Ann Rep 317-20 (1929). Former CPA § 365 has been omitted. The last clause of that section, which empowered the person administering the oath to inquire of the person to be sworn what “peculiar ceremonies” he deemed most obligatory, is clearly implied in this subdivision. The first clause of former CPA § 365 which empowered the court or officer to examine a person to determine if he was competent, is unnecessary. This is an essential and inherent power which cannot be questioned. See, e.g., 2 Wigmore, Evidence §§ 487, 497 (3d ed 1940); Richardson, Evidence § 117 (8th ed, Prince 1955).

Subd (c) of this section is based on the last part of the first sentence of former CPA § 359. So much of the remainder of that section as dealt with the authority to administer oaths outside the state is included in subd (a) of this section, and the provisions regarding translations are dealt with in article 21.

Revision Notes:

[1963, ch 282] This amendment was recommended by the Law Revision Commission. See Leg Doc (1963) No. 65 (I). It amends Real P Law § 312 for the purpose of simplifying the authentication of certificates of notaries of other states and of territories and possessions of the United States. A conforming change is made in § 2309(c) of the Civil Practice Law and Rules.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1963, ch 282, § 2, eff Sept 1, 1963; L 1963, ch 532, § 14, eff Sept 1, 1963; L 1964, ch 287, § 1, eff Sept 1, 1964; L 2024, ch 502, § 5, effective November 22, 2024.