3.3 Depositions, Proofs, Protests, and Limits

The Notary's Role in a Deposition

A deposition is sworn testimony taken outside the courtroom, usually during the discovery phase of litigation. Executive Law Section 135 authorizes a New York notary to take affidavits and depositions — which in practice means the notary administers the oath to the witness, called the deponent. After that, the notary steps back: attorneys ask the questions, and a court reporter (a stenographer) records the testimony. The notary may sign a certificate on the transcript stating that the witness was duly sworn.

The distinction the exam wants is the boundary of your role. You swear the witness; you do not ask questions, give legal advice, or vouch for the truth of the answers. The deponent's sworn testimony carries the same weight as testimony in open court — false answers are perjury.

Worked example: You are asked to a law office to swear a witness before a deposition. You administer the oath: "Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth?" The witness answers "I do." From there the attorneys question her and the reporter transcribes. Your job is complete once she is sworn — stepping in to clarify a legal question would be the unauthorized practice of law.

Proof of Execution by a Subscribing Witness

Sometimes the person who signed a document cannot personally appear — perhaps they have died or moved away. New York provides an alternative for recordable instruments: a proof of execution by a subscribing witness, governed by Real Property Law Section 304. Here, a witness who actually saw the signing appears before the notary, is sworn, and swears that:

• the witness knows the person who executed the instrument;
• the witness was present and saw that person sign; and
• the witness then signed as a subscribing witness.

The witness must also state his or her place of residence (including street and number if in a city). A proof is the only way other than an acknowledgment to get a deed or similar instrument into recordable form.

Protests of Negotiable Instruments

A traditional, now-rare notarial power survives in Executive Law Section 135: a notary may demand acceptance or payment of foreign and inland bills of exchange, promissory notes, and other written obligations, and may protest them for non-acceptance or non-payment. A protest is a formal certificate documenting that an instrument was presented and dishonored — historically vital in commercial law. You are unlikely to perform one, but the exam may list "protest negotiable instruments" as a recognized notarial power, so know the term.

Other Permitted New York Acts

New York notaries may also:

• Take affidavits (sworn written statements) via a jurat.
• Administer the oath of office to public officers when authorized.
• Perform electronic and remote notarial acts when properly registered with the Department of State.
• Issue a certificate of authenticity when 'papering out' an electronically notarized record.

What a New York Notary May NOT Do

Knowing your limits is just as testable as knowing your powers:

Notably, New York notaries have no statutory power to certify copies of any document, and certainly not vital records, which by law must be certified through the proper registrar or county clerk. A notary who advises a client on which document to use, or how a clause will operate, has crossed into the unauthorized practice of law — even with good intentions. When asked a legal question, the correct response is to refer the person to an attorney.

Recap: in a deposition you only swear the witness; a proof of execution lets a subscribing witness stand in for an absent signer; protests remain a recognized power; and the bright-line don'ts are certifying copies of vital records and giving legal advice.