RE KEARNEY — DECISION 181
embarrassed at not being able to find a notary at that hour of the evening, and it
was a very considerable accommodation to him when KEARNEY verified the papers
presented. The average man would have been grateful to KEARNEY under the
circumstances. This condition of affairs, however, did not warrant KEARNEY in
demanding anything in excess of the legal fee. His excuse that his wife was entitled
to compensation for hunting up and bringing an erasing rubber is not a good one. A
notary must not charge more than the law allows. He must verify papers and attach
his certificate — that is what the fee is for — and he cannot properly charge for
filling out the certificate. Even if he should go out of his office, he must not exact
compensation therefor except by agreement. He may decline to act out of ordinary
business hours; he may refuse to get out of bed; he may not be compelled to go
away from his place of business to act as a notary. But when once acting as a
notary he can charge his legal fee and no more. Any compensation for loss of time,
clerical service or personal inconvenience must be based upon a contract made and
clearly understood before the service is rendered.
Under the circumstances as they appear from the testimony and the report of
the commissioner, I do not feel warranted in depriving the accused of his office of
notary public, but hereby reprimand him for not having made himself more
familiar with the statute regulating fees. Complainant has a remedy at law for the
recovery of any moneys paid by him in excess of the fee fixed by statute.
(Executive Law, § 85.) I have no authority to order restitution.
THEODORE ROOSEVELT